LOAN AGREEMENT between CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. and EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT Dated August 22, 2007
(Operation
Number 38237)
between
and
EUROPEAN
BANK
FOR
RECONSTRUCTION AND DEVELOPMENT
Dated
August 22, 2007
|
ARTICLE
I - DEFINITIONS
|
1
|
|
|
Section
1.01.
|
DEFINITIONS
|
1
|
|
Section
1.02.
|
INTERPRETATION
|
13
|
|
|
||
|
ARTICLE
II - REPRESENTATIONS AND WARRANTIES
|
15
|
|
|
Section
2.01.
|
REPRESENTATIONS
REGARDING THE PROJECT
|
15
|
|
Section
2.02.
|
REPRESENTATIONS
REGARDING THE BORROWER
|
15
|
|
Section
2.03.
|
REPRESENTATIONS
REGARDING THE AGREEMENTS
|
18
|
|
Section
2.04.
|
ACKNOWLEDGEMENT
AND REPETITION
|
19
|
|
ARTICLE
III - LOAN
|
20
|
|
|
Section
3.01.
|
AMOUNT
AND CURRENCY
|
20
|
|
Section
3.02.
|
DISBURSEMENTS
|
20
|
|
Section
3.03.
|
SUSPENSION
AND CANCELLATION
|
21
|
|
Section
3.04.
|
CHARGES,
COMMISSIONS AND FEES
|
21
|
|
Section
3.05.
|
INTEREST
|
22
|
|
Section
3.06.
|
DEFAULT
INTEREST
|
23
|
|
Section
3.07.
|
REPAYMENT
|
24
|
|
Section
3.08.
|
PREPAYMENT
|
24
|
|
Section
3.09.
|
PAYMENTS
|
25
|
|
Section
3.10.
|
INSUFFICIENT
PAYMENTS
|
26
|
|
Section
3.11.
|
TAXES
|
26
|
|
Section
3.12.
|
UNWINDING
COSTS
|
27
|
|
Section
3.13.
|
INCREASED
COSTS
|
28
|
|
Section
3.14.
|
ILLEGALITY
|
29
|
|
Section
3.15.
|
LOAN
ACCOUNT
|
29
|
|
ARTICLE
IV - CONDITIONS PRECEDENT
|
30
|
|
|
Section
4.01.
|
FIRST
DISBURSEMENT
|
30
|
|
Section
4.02.
|
ALL
DISBURSEMENTS
|
32
|
|
Section
4.03.
|
PARTICIPATIONS
|
33
|
|
ARTICLE
V - AFFIRMATIVE COVENANTS
|
34
|
|
|
Section
5.01.
|
CORPORATE
EXISTENCE; CONTINUITY OF BUSINESS
|
34
|
|
Section
5.02.
|
PROJECT
IMPLEMENTATION AND USE OF PROCEEDS
|
34
|
|
Section
5.03.
|
BUSINESS
PLAN AND BUDGET
|
34
|
|
Section
5.04
|
ENVIRONMENTAL
AND SOCIAL COMPLIANCE
|
35
|
|
Section
5.05.
|
INSURANCE
|
35
|
|
Section
5.06.
|
ACCOUNTING
|
35
|
|
Section
5.07.
|
CONTINUING
GOVERNMENTAL AND OTHER AUTHORISATIONS
|
35
|
|
Section
5.08.
|
SECURITY
|
36
|
|
Section
5.09.
|
COMPLIANCE
WITH OTHER OBLIGATIONS
|
36
|
|
Section
5.10.
|
TAXES
|
36
|
|
Section
5.11.
|
OPERATIONAL
DOCUMENTS
|
36
|
|
Section
5.12.
|
FURTHER
DOCUMENTS
|
37
|
|
Section
5.13.
|
COSTS
AND EXPENSES
|
37
|
|
Section
5.14.
|
REPORTS;
FURNISHING OF INFORMATION
|
38
|
|
Section
5.15.
|
ORIGINAL
LOAN AGREEMENT
|
▇▇
|
-▇-
|
▇▇▇▇▇▇▇
▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
▇▇
|
|
|
Section
6.01.
|
LIMITATION
ON INDEBTEDNESS
|
40
|
|
Section
6.02.
|
LIMITATION
ON RESTRICTED PAYMENTS; INVESTMENTS
|
40
|
|
Section
6.03.
|
LIMITATION
ON LIENS
|
40
|
|
Section
6.04.
|
WAIVER
OF STAY; EXTENSION OR USURY LAWS
|
40
|
|
Section
6.05.
|
LIMITATION
ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES
|
40
|
|
Section
6.06.
|
LIMITATION
ON SALES OF ASSETS AND SUBSIDIARY STOCK
|
40
|
|
Section
6.07.
|
LIMITATION
ON AFFILIATE TRANSACTIONS; ARM’S LENGTH TRANSACTIONS
|
41
|
|
Section
6.08.
|
LIMITATION
ON LINES OF BUSINESS
|
41
|
|
Section
6.09.
|
MERGER,
AMALGAMATION AND CONSOLIDATION
|
41
|
|
Section
6.10.
|
LIMITATION
ON SALE OF STOCK OF RESTRICTED SUBSIDIARIES
|
41
|
|
Section
6.11.
|
LIMITATION
ON GUARANTEES OF THE BORROWER AND SUBSIDIARY GUARANTOR
INDEBTEDNESS
|
42
|
|
Section
6.12.
|
IMPAIRMENT
OF SECURITY INTEREST
|
42
|
|
Section
6.13.
|
REPAYMENT
OF INDEBTEDNESS
|
42
|
|
Section
6.14.
|
CHANGES
TO PROJECT AND CHARTER
|
42
|
|
|
||
|
ARTICLE
VII - EVENTS OF DEFAULT
|
43
|
|
|
Section
7.01.
|
EVENTS
OF DEFAULT
|
43
|
|
Section
7.02.
|
CONSEQUENCES
OF DEFAULT
|
45
|
|
ARTICLE
VIII - MISCELLANEOUS
|
45
|
|
|
Section
8.01.
|
TERM
OF AGREEMENT
|
45
|
|
Section
8.02.
|
ENTIRE
AGREEMENT; AMENDMENT AND WAIVER
|
45
|
|
Section
8.03.
|
NOTICES
|
46
|
|
Section
8.04.
|
ENGLISH
LANGUAGE
|
47
|
|
Section
8.05.
|
FINANCIAL
CALCULATIONS
|
47
|
|
Section
8.06.
|
RIGHTS,
REMEDIES AND WAIVERS
|
47
|
|
Section
8.07.
|
INDEMNIFICATION
|
48
|
|
Section
8.08.
|
GOVERNING
LAW
|
49
|
|
Section
8.09.
|
ARBITRATION
AND JURISDICTION
|
49
|
|
Section
8.10.
|
PRIVILEGES
AND IMMUNITIES OF EBRD
|
50
|
|
Section
8.11.
|
WAIVER
OF SOVEREIGN IMMUNITY
|
50
|
|
Section
8.12.
|
SUCCESSORS
AND ASSIGNS; THIRD PARTY RIGHTS
|
50
|
|
Section
8.13.
|
DISCLOSURE
|
51
|
|
Section
8.14.
|
COUNTERPARTS
|
51
|
-ii-
SCHEDULE
1 - COMMITMENT
EXHIBITS
|
EXHIBIT
A
|
-
|
FORM
OF DISBURSEMENT APPLICATION
|
|
EXHIBIT
B
|
-
|
FORM
OF CERTIFICATE OF INCUMBENCY AND AUTHORITY
|
|
EXHIBIT
C
|
-
|
FORM
OF LETTER TO AUDITORS
|
|
EXHIBIT
D
|
-
|
LIST
OF SUBSIDIARIES
|
|
EXHIBIT
E
|
-
|
LICENCES
|
|
EXHIBIT
F
|
-
|
REPORT
ON ENVIRONMENTAL MATTERS AND SOCIAL
MATTERS
|
-iii-
LOAN
AGREEMENT (this “Agreement”) dated August 22,
2007 between CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. a company
incorporated and existing under the laws of Bermuda (the “Borrower”), and the
EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT, an
international organisation formed by treaty (“EBRD”).
|
Definitions
|
Wherever
used in this Agreement
(including the Exhibits and any Schedules), unless the context otherwise
requires, the following terms have the following meanings:
|
means
the indenture dated 5 May, 2005, between the Borrower, the Subsidiary
Guarantors, JPMorgan Chase Bank, N.A., London Branch (as Trustee,
Transfer
Agent, Principal Paying Agent and Security Trustee) and ▇.▇. ▇▇▇▇▇▇
Bank
Luxembourg S.A. (as Registrar and Luxembourg Transfer and Paying
Agent)
providing for the creation and issuance of the 2005
Notes.
|
|
“2005
Notes”
|
means
the €245,000,000 fixed rate notes created and issued by the Borrower under
the 2005 Indenture, together with any additional notes created and
issued
thereunder.
|
|
“2005
Trustee”
|
means
JPMorgan Chase Bank, N.A., London Branch as Trustee and Security
Trustee
under the 2005 Indenture, or any successor appointed in accordance
with
the terms thereof.
|
|
“2007
Indenture”
|
means
the indenture dated 16 May, 2007, between the Borrower, the Subsidiary
Guarantors, BNY Corporate Trustee Services Limited (as Trustee),
The Bank
of New York (as Transfer Agent, Principal Paying Agent and Security
Trustee) and The Bank of New York (Luxembourg) S.A. (as Registrar,
Luxembourg Transfer Agent and Luxembourg Paying Agent) providing
for the
creation and issuance of the 2007
Notes.
|
|
“2007
Notes”
|
means
the €150,000,000 floating rate notes created and issued by the Borrower
under the 2007 Indenture, together with any additional notes created
and
issued thereunder.
|
1
|
“2007
Trustees”
|
means,
collectively, BNY Corporate Trustee Services Limited as Trustee under
the
2007 Indenture and The Bank of New York as Security Trustee under
the 2007
Indenture or any successors appointed in accordance with the terms
thereof.
|
|
“A
Loan”
|
means
the maximum principal amount of the loan provided for in Section
3.01(1)
or, as the context may require, the principal amount thereof from
time to
time outstanding.
|
|
“Auditors”
|
means
such firm of independent accountants as the Borrower may from time
to time
appoint as its auditors in accordance with Section
5.06.
|
|
“Authorisation”
|
any
consent, registration, filing, agreement, notarisation, certificate,
licence, approval, permit, authority or exemption from, by or with
any
Governmental Authority, whether given or withheld by express action
or deemed given or withheld by failure to act within any specified
time
period and all corporate, creditors' and shareholders' approvals
or
consents.
|
|
“Available
Amount”
|
means,
as of any date, an amount determined by EBRD to
be:
|
(a) the
Commitment as of such date; less
(b) the
aggregate principal amount of all Disbursements scheduled to be outstanding
on
such date (other than a Disbursement proposed to be made on such date and other
than an existing Disbursement which is scheduled, in accordance with Section
3.07, to be repaid on such date to the extent that the proceeds of a
Disbursement proposed to be made on such date will be applied to repay such
existing Disbursement in accordance with Section 3.07.
|
“B
Loan”
|
means
the maximum principal amount of the loan provided for in Section
3.01(2)
or, as the context may require, the principal amount thereof from
time to
time outstanding.
|
|
“Budget”
|
means,
in relation to any Financial Year, the forecast consolidated results
for
the Group (including balance sheets, profit and loss, cash flows,
Segment
Net Revenues and Segment EBITDA), together with the summary economic,
market and financial assumptions and financial results, including
expenditures on the Project, in respect
thereof.
|
2
|
“Business
Day”
|
means
a day (other than a Saturday or Sunday) on which commercial banks
are open
for the transaction of general business (including dealings in foreign
exchange and foreign currency deposits) in London, England and which
is a
TARGET Day.
|
|
“Business
Plan”
|
means
the Borrower's business plan, in the form of a computer model sent
to EBRD
by courier on 12 January, 2007, comprising (1) summary economic,
market and financial assumptions and financial results, including
expenditures on the Project, segmented by each of the current Countries
of
Operation, and (2) consolidated financial results for the Group,
in each
case showing actual results for 2005 consistent with the Borrower's
audited financial statements and 10-K Forms required to be filed
with the
Commission, together with forecasts for each of the following Financial
Years up to 2012, as updated or amended in accordance with Section
5.03.
|
|
“Change
of Control”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
“Change
of Control
|
Triggering
Event”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
|
“Charter”
|
means,
in respect of any company, corporation, partnership, enterprise or
other
entity, its charter, founding act, articles or certificate of
incorporation and byelaws, memorandum and/or articles of association,
statutes or similar instrument, as applicable, as may be amended
from time
to time.
|
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
|
“Commitment”
|
means,
for each period set forth in Schedule 1, the amount set forth in
Schedule
1 opposite such period, which amount is the maximum principal amount
of
the Loan during such period hereunder, to the extent that such amount
has
not been cancelled pursuant to Section
3.03.
|
|
“Commitment
Period”
|
means
the period commencing on the date of this Agreement and terminating
on the
earlier of the Final Maturity Date and the date the obligation of
EBRD to
make Disbursements hereunder terminates in accordance with the terms
of
this Agreement.
|
|
“Country
of Operation”
|
means
each of Croatia, Czech Republic, Romania, Slovak Republic, Ukraine
and
Slovenia, together with any of Poland, Hungary, Serbia, Bulgaria
and
Russia in which any member of the Group shall have any business operations
from time to time (together, the “Countries of
Operation”).
|
3
|
“Czech
Loans”
|
means
the
Loan Agreement No. 2644/05/LCD dated 27 October, 2005, entered into
by and between Česká spořitelna, a.s., as lender and CET 21 spol. s r.o.,
as borrower and the Loan Agreement No. 2645/05/LCD dated 27 October,
2005,
entered into by and between Česká spořitelna, a.s., as lender
and CET 21 spol. s r.o., and Česká produkčnί
2000,
a.s., as joint borrowers, as each such agreement may be amended from
time
to time and any renewals or refinancings
thereof.
|
|
“Default”
|
means
any Event of Default or any event which, with the giving of notice,
the
passage of time or the making of any determination, or any combination
thereof, would become an Event of
Default.
|
|
“Default
Interest Period”
|
means,
with respect to any amount overdue under this Agreement, a period
commencing on the day on which such payment becomes due or, as the
case
may be, on the last day of the previous Default Interest Period with
respect to such overdue amount, and ending on a Business Day
selected by EBRD.
|
|
means
the disbursement of any portion of the Loan from time to time pursuant
to
Section 3.02 or, as the context may require, the principal amount
thereof
from time to time outstanding.
|
|
“Dollars”
, “USD” or “$”
|
means
the lawful currency of the United States of
America.
|
|
means:
|
|
(a)
|
the
pollution or protection of the
environment;
|
|
(b)
|
harm
to or the protection of human
health;
|
|
(c)
|
health
and safety of the workplace; or
|
|
(d)
|
any
emission or substance capable of causing harm to any living organism
or
the environment.
|
|
“Euro”,
“EUR” or “€”
|
means
the lawful currency of the member states of the European Union that
adopt
the single currency in accordance with the Treaty Establishing the
European Community, as amended by the Treaty on European Union and
the
Treaty of Amsterdam.
|
4
|
“Event
of Default”
|
means
any one of the events or occurrences specified in Section
7.01.
|
|
“Final
Maturity Date”
|
means
10 May 2011.
|
|
means
the consolidated financial statements (including balance sheet, income
statement, statement of changes in equity, cash flow statement and
notes,
comprising a summary of significant accounting policies and other
explanatory notes) of the Borrower and its Subsidiaries prepared
in
accordance with Generally Accepted Accounting
Principles.
|
|
means
the period commencing each year on 1 January and ending on the following
31 December, or such other period as the Borrower may from time to
time
designate as the accounting year of the
Borrower.
|
|
means
the agreement dated 13 December 2004 between the Borrower, CME Media
Enterprises B.V. and PPF (Cyprus) Ltd. (as
amended).
|
“Generally
Accepted
|
Accounting
Principles”
|
means
accounting principles generally accepted in the United States of
America
as in effect from time to time and consistently
applied.
|
|
means
the government of any country, or of any political subdivision thereof,
whether state, regional or local, and any agency, authority, branch,
department, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government
or any
subdivision thereof (including any supra-national bodies), and all
officials, agents and
|
|
|
representatives
of each of the foregoing.
|
|
“Group”
|
means
the Borrower and its Subsidiaries.
|
|
“Incur”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
|
“Indebtedness”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
5
|
“Indentures”
|
means,
collectively, the 2005 Indenture and the 2007
Indenture.
|
|
“Interbank
Rate”
|
means,
for each Interest Period, the offered rate per annum for deposits
in the
Loan Currency which appears on the Reference Page as of 11:00 a.m.,
Brussels time, on the relevant Interest Determination Date for the
period
which is closest to the duration of such Interest Period (or, if
two
periods are equally close to the duration of such Interest Period,
the
average of the two relevant rates); provided
that:
|
(a) if,
for any reason, the Interbank Rate cannot be determined at such time by
reference to the Reference Page, the Interbank Rate for such Interest Period
shall be the rate per annum which EBRD determines to be the arithmetic mean
(rounded upward, if necessary, to the nearest 1/16%) of the offered rates per
annum for deposits in the Loan Currency in an amount comparable to the portion
of the Loan scheduled to be outstanding during such Interest Period for a period
equal to such Interest Period which are advised to EBRD by three major banks
active in the Euro-zone interbank market selected by EBRD; and
(b) if
EBRD determines that deposits in the Loan Currency are not being offered in
the
Euro-zone interbank market in such amounts or for such period, the Interbank
Rate for such Interest Period shall be the cost to EBRD (expressed as a rate
per
annum) of funding the portion of the Loan scheduled to be outstanding during
such Interest Period from whatever sources it selects.
“Interest
|
Determination
Date”
|
means,
for any Interest Period, the date two Business Days prior to the
first day
of such Interest Period.
|
|
means
the last day of each Interest Period, determined in accordance with
Section 3.05(b), and which shall in each case fall on a day which
is the
tenth day of a calendar month; provided however that if any Interest
Payment Date would otherwise fall on a day which is not a Business
Day,
such Interest Payment Date shall be changed to the next succeeding
Business Day.
|
|
means,
for any Disbursement, the period determined in accordance with Section
3.05(b).
|
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
6
|
“Licences”
|
means
the licences listed in Exhibit E, as may be renewed, extended or
superseded from time to time.
|
|
“Lien”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
|
means
collectively, the A Loan and the B Loan or, as the context may require,
the principal amount thereof from time to time
outstanding.
|
|
“Loan
Currency”
|
means
the currency in which the Loan is denominated as set forth in Section
3.01.
|
|
means,
as of any date, any Indebtedness of the Borrower all or part of which,
or
the final payment of which, is due after the Final Maturity Date
but
which, for the avoidance of doubt, excludes Indebtedness which constitutes
a refinancing of any or all of the
Notes.
|
|
“Margin”
|
means
1.625% per annum.
|
|
“Material
Adverse Effect”
|
means
a material adverse effect on:
|
(a) the
ability of the Borrower or any Subsidiary Guarantor to perform or comply with
any of their respective obligations under any New Financing Agreement or Charter
(as the case may be) or of any relevant member of the Group to comply with
any
obligations under any Licence;
(b) the
rights and remedies of EBRD in respect of any Security;
(c) the
legality, validity, enforceability and binding nature of any New Financing
Agreement, Licence or (in the case of the Borrower and the Subsidiary
Guarantors) Charter or the legal rights, remedies and priorities of EBRD under
any of the New Financing Agreements; or
(d) the
business, operations, financial condition or prospects of the
Borrower, any Subsidiary Guarantor or the Group as a whole.
|
means
the security assignment dated on or about the date hereof pursuant
to
which the Borrower and CME Media Enterprises B.V. grant to EBRD a
security
interest in all of their rights, interests and benefits under the
Framework Agreement and any performance bonds, warranties, guarantees
and
undertakings issued thereunder in favour of the Borrower or CME Media
Enterprises B.V., together with the notices and acknowledgements
and
consents in the forms attached thereto, which instrument shall be
in the
Agreed Form.
|
7
“New
Financing
|
Agreements”
|
means:
|
(a)
this
Agreement,
(b)
the
New
Participation Agreement,
(c) the
New Subsidiary Guarantees,
(d) the
New Share Pledges,
(e) the
New Contract Assignment,
(f)
the New Intercreditor
Agreement,
(g) the
Disbursement applications referred to in Section 3.02, and
(h) any
other agreements entered into between the Borrower or any of its Subsidiaries
and EBRD and notices, certificates and applications issued by the Borrower
or
any of its Subsidiaries to EBRD in each case in connection with this Agreement
or the transactions contemplated by this Agreement.
“New
Intercreditor
|
Agreement”
|
means
the Original Intercreditor Agreement as amended and restated by a
Deed of
Amendment to be entered into between EBRD, the 2005 Trustee, the
2007
Trustees, the Borrower and the Subsidiary Guarantors, providing for,
inter alia, sharing of the Security and any other security
interest created in favour of EBRD, the 2005 Trustee and the 2007
Trustees
and the Security Trustee to secure any amounts owing by the Borrower,
which agreement shall be in the Agreed
Form.
|
“New
Participation
|
Agreement”
|
means
the agreement to be entered into between EBRD and each Participant
in
relation to each Participation.
|
8
|
“New
Security Documents”
|
means:
|
|
|
(a)
|
the
New Share Pledges,
|
|
|
(b)
|
the
New Contract Assignment, and
|
|
|
(c)
|
any
other instrument or document entered or to be entered into as security
for
all amounts owing to EBRD under the New Financing
Agreements.
|
|
“New
Share Pledge”
|
means
each pledge dated on or about the date hereof in favour of EBRD over
the
shares of Central European Media Enterprises N.V. and CME Media
Enterprises B.V. respectively, in the Agreed Form (together the “New Share
Pledges”).
|
|
“New
Subsidiary Guarantee”
|
means
a guarantee of all amounts owing to EBRD by the Borrower under the
New
Financing Agreements, as applicable, each such guarantee to be entered
into by a Subsidiary Guarantor in favour of EBRD in the Agreed
Form (together, the “New Subsidiary
Guarantees”).
|
|
“Notes”
|
means,
collectively, the 2005 Notes and the 2007
Notes.
|
|
“Operational
Documents”
|
means:
|
(a) the
Licences;
(b) the
Charters of the Borrower and the Subsidiary Guarantors; and
(c) the
Framework Agreement.
“Original
Contract
|
Assignment”
|
means
the security assignment dated 21 July, 2006 pursuant to which the
Borrower
and CME Media Enterprises B.V. granted to EBRD a security interest
in all
of their rights, interests and benefits under the Framework Agreement
and
any performance bonds, warranties, guarantees and undertakings issued
thereunder in favour of the Borrower or CME Media Enterprises B.V.,
together with the notices and acknowledgements and consents in the
forms
attached thereto.
|
“Original
Financing
|
Agreements”
|
means:
|
(a) the
Original Loan Agreement;
(b) the
Original Participation Agreement,
9
(c) the
Original Subsidiary Guarantees,
(d) the
Original Share Pledges,
(e) the
Original Contract Assignment,
(f)
the Original Intercreditor
Agreement as superseded by the New Intercreditor Agreement,
(g) the
Supplemental Loan Agreement,
(h) the
Disbursement applications referred to in Section 3.02 of the Original Loan
Agreement, and
(i)
any
other
agreements entered into between the Borrower or any of its Subsidiaries and
EBRD
and notices, certificates and applications issued by the Borrower or any
of its
Subsidiaries to EBRD in each case in connection with the Original Loan Agreement
or the transactions contemplated thereby.
“Original
Intercreditor
|
Agreement”
|
means
the intercreditor agreement dated 21 July, 2006 between EBRD, the
2005
Trustee, the Borrower and the Subsidiary Guarantors, as amended and
restated by a Deed of Amendment dated 16 May, 2007 between EBRD,
the 2005
Trustee, the 2007 Trustees, the Borrower and the Subsidiary Guarantors,
providing for, inter alia, sharing of the Security and any other
security interest created in favour of EBRD, the 2005 Trustee and
the 2007
Trustees to secure any amounts owing by the
Borrower.
|
|
“Original
Loan Agreement”
|
means
the loan agreement dated 21 July, 2006 between the Borrower and EBRD,
as
amended by an amendatory letter agreement dated 16 November, 2006
and as
further amended by the Supplemental Loan
Agreement.
|
“Original
Participation
|
Agreement”
|
means
the participation agreement dated 21 July, 2006 between EBRD and
the
Participants thereunder.
|
“Original
Security
|
Documents”
|
means:
|
|
|
(a)
|
the
Original Share Pledges,
|
|
|
(b)
|
the
Original Contract Assignment, and
|
|
|
(c)
|
any
other instrument or document entered or to be entered into as security
for
all amounts owing to EBRD under the Original Financing
Agreements.
|
10
|
“Original
Share Pledge”
|
means
each pledge dated 21 July, 2006 in favour of EBRD over the shares
of
Central European Media Enterprises N.V. and CME Media Enterprises
B.V.
respectively (together, the “Original Share
Pledges”).
|
“Original
Subsidiary
|
Guarantee”
|
means
a guarantee of all amounts owing to EBRD by the Borrower under the
Original Financing Agreements, as applicable, each such guarantee
entered
into by a Subsidiary Guarantor on 21 July, 2006 in favour of EBRD
(together, the “Original Subsidiary
Guarantees”).
|
|
“Participant”
|
means
a person from whom EBRD receives a formal commitment to acquire a
Participation through the execution of, or the accession to, the
New
Participation Agreement.
|
|
means
a participation in the Loan or, as the context may require, in a
Disbursement.
|
|
“Permitted
Liens”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
|
means,
collectively, (i) the acquisition by any member of the Group of minority
stakes in operations of the Group in the Ukraine and Romania; (ii)
the
upgrade and extension by any member of the Group of studio premises
in the
Ukraine and Romania; and (iii) the acquisition by any member of the
Group
of additional broadcasting licences and/or operations in the
Ukraine.
|
|
means
any day which is 10 February, 10 May, 10 August or 10 November in
any
year; provided, however, that, if any Quarterly Date would otherwise
fall
on a day which is not a Business Day, such Quarterly Date shall be
changed
to the next succeeding Business
Day.
|
|
“Reduction
Date”
|
means
the last day of each of the periods set forth in Schedule
1.
|
|
“Reference
Page”
|
means
the display of Euro-zone interbank offered rates for deposits
in the Loan Currency designated as page EURIBOR01 on Reuters Services
(or
such other page as may replace page EURIBOR01 on Reuters Services
for the
purpose of displaying Euro-zone interbank offered rates for deposits
in
the Loan Currency).
|
|
“Regulation
S”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
|
“Renewal
Disbursement”
|
means
a Disbursement which is used exclusively for the purpose of repaying
all
or part of one or more outstanding Disbursements and, after application
of
the proceeds thereof, results in no net increase in the aggregate
principal amount of Disbursements then
outstanding.
|
11
|
“Restricted
Subsidiary”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
|
“Security”
|
means
the security created, expressed to be created or agreed to be created
pursuant to any of the New Security Documents to secure all amounts
owing
to EBRD under the New Financing
Agreements.
|
|
means,
in relation to each of the Countries of Operation from time to time,
net
income (loss), before interest, taxes, depreciation, other income
and
foreign exchange gains or losses and amortisation of intangible assets,
as
determined for the purposes of the Borrower's Form 10-K filed annually
with the Commission.
|
|
“Segment
Net Revenue”
|
means,
in relation to each of the Countries of Operation from time to time,
the
net sales revenue as determined under Generally Accepted Accounting
Principles.
|
|
“Significant
Subsidiary”
|
shall
have the meaning ascribed to it in the 2005
Indenture.
|
|
“Social
Matter”
|
means:
|
(a) labour
standards and employment conditions as regulated by applicable law;
(b) the
impact on persons of resettlement or land acquisition;
(c) the
impact on indigenous peoples and other vulnerable groups;
(d) the
impact on objects of cultural heritage including archaeological artefacts and
sites; or
(e) public
consultation and disclosure, including grievances from members of the public
notified to the Borrower.
|
means,
with respect to any entity, any other entity over 50% of whose capital
is
owned, directly or indirectly, by such entity or which is otherwise
effectively controlled by such
entity.
|
|
“Subsidiary
Guarantor”
|
means
each of Central European Media Enterprises N.V. and CME Media Enterprises
B.V. (together, the “Subsidiary
Guarantors”).
|
12
|
“Successor
Guarantor”
|
means
the resulting, surviving or transferee Person so referenced in Section
4.18(d)(1) of the 2005 Indenture.
|
“Supplemental
Loan
|
Agreement”
|
means
the Supplemental Agreement dated on or about the date hereof between
the
Borrower and EBRD, amending the Original Loan
Agreement.
|
|
“TARGET
Day”
|
means
any day on which the Trans-European Automated Real-time Gross Settlement
Payment System (TARGET) is open for the settlement of payments in
Euro.
|
|
“Tax”
or “Taxes”
|
means
any tax, royalty, stamp or other duty, assessment, levy,
charge, value added tax, or impost of any nature whatsoever
(including any related penalty or interest) imposed under any
law.
|
|
“Trustees”
|
means,
collectively, the 2005 Trustee and the 2007 Trustees or any successor
appointed in accordance with the terms of the 2005 Indenture or the
2007
Indenture respectively.
|
“TV
Nova
Group
|
Agreement”
|
means
the agreement dated 2 May 2005 between the Borrower, CME Media Enterprises
B.V., PPF (Cyprus) Ltd., CME Media Services s.r.o. (f/k/a PGT Corporation
s.r.o.) and CME Media Investments
s.r.o.
|
|
“TV
Nova Licence”
|
means
the licence no. 001/93 granted to CET 21, s.r.o. by the Council for
Radio
and Television Broadcasting of the Czech
Republic.
|
|
Section
1.02.
|
Interpretation
|
(a) In
this Agreement, unless the context otherwise requires, words denoting the
singular include the plural and vice versa.
(b) In
this Agreement, a reference to a specified Article, Section, Schedule or Exhibit
shall be construed as a reference to that specified Article or Section of,
or
Schedule or Exhibit to, this Agreement.
(c) In
this Agreement, a reference (i) to an amendment or to an agreement being amended
includes a supplement, variation, assignment, novation, restatement or
re-enactment, and (ii) to an agreement shall be construed as a reference to
such
agreement as it may be amended from time to time.
(d) In
this Agreement, the headings and the Table of Contents are inserted for
convenience of reference only and shall not affect the interpretation of this
Agreement.
13
(e) In
this Agreement, “control” (including, with correlative meanings, the terms
“controlled by” and “under common control with”), as used with respect to any
person, means the possession, directly or indirectly, of the power to direct
or
cause the direction of the management and policies of such person, whether
through the ownership of voting shares, by contract or otherwise.
(f) In
this Agreement, a Default is outstanding or continuing until it has been
remedied or waived by EBRD in writing.
(g) In
this Agreement, a reference to a document being “in the Agreed Form” means that
the form of such document has been agreed by the parties hereto and that a
copy
thereof has been initialled for the purpose of identification by EBRD and the
Borrower.
(h) In
this Agreement, any reference to “law” means any law (including, any common or
customary law) and any treaty, constitution, statute, legislation, decree,
normative act, rule, regulation, judgement, order, writ, injunction,
determination, award or other legislative or administrative measure or judicial
or arbitral decision in any jurisdiction which has the force of law or the
compliance with which is in accordance with general practice in such
jurisdiction.
(i) In
this Agreement, any reference to a provision of law, is a reference to that
provision as from time to time amended or re-enacted.
(j) In
this Agreement, a reference to a “person” includes any person, natural or
juridical entity, firm, company, corporation, government, state or agency of
a
state or any association, trust or partnership (whether or not having separate
legal personality) or two or more of the foregoing and references to a “person”
include its successors in title, permitted transferees and permitted
assigns.
(k) In
this Agreement, “Euro-zone” is a reference to the region comprised of the member
states of the European Union that adopt the single currency in accordance with
the Treaty Establishing the European Community, as amended by the Treaty on
European Union and the Treaty of Amsterdam.
(l) In
this Agreement, “including” and “include” shall be deemed to be followed by
“without limitation” where not so followed.
14
|
Section
2.01.
|
Representations
Regarding the Project
|
The
Borrower represents and warrants as
follows:
|
(a)
|
Project
Description.
|
(1) The
Project conforms in all material respects with its definition in this Agreement
(subject to any modifications to which EBRD may agree in writing).
(2) As
of the date of this Agreement, to the extent that any information
contained in the Business Plan relates to financial forecasts or projections
of
future events, such forecasts and projections have been prepared in good faith,
giving due and careful consideration to all relevant factors and based on
assumptions that were reasonable at the time that such forecasts and projections
were prepared, and there has been nothing since the date such forecasts and
projections were prepared to the date of this Agreement that would make them
unreasonable, save for the revised forecasts and projections for the Group’s
business in Ukraine delivered to EBRD by e-mail on 6 August, 2007.
|
Section
2.02.
|
Representations
Regarding the Borrower
|
The
Borrower represents and warrants as
follows:
(a) Incorporation. The
Borrower is a company duly incorporated, validly existing, and, if applicable,
in good standing under the laws of Bermuda and registered, to the extent
required in accordance with applicable law, with all relevant registration
bodies in any jurisdiction in which it carries on business or owns assets and
has full power to own the properties which it owns or will have full power
to
own the properties it will own for the purposes of the Project and to carry
out
the businesses which it carries out or will carry out for the purposes of the
Project.
(b) Corporate
Structure. The information in the list of Subsidiaries
contained in Exhibit D is true, complete and correct as at the date of this
Agreement, and the Borrower has no Subsidiaries other than as specified therein
as at the date hereof.
(c) Subsidiaries. Each
of the Significant Subsidiaries and each other Subsidiary to which the Project
relates is duly organised, validly existing, and, if applicable, in good
standing under the laws of the jurisdiction in which it is organised and
registered, to the extent required in accordance with applicable law, with
all
relevant registration bodies in any jurisdiction in which it carries on business
or owns assets and has full power to own the properties which it owns or will
have full power to own the properties it will own for the purposes of the
Project and to carry out the businesses which it carries out or will carry
out
for the purposes of the Project.
(d) Directors
and Officers. As of the date of this Agreement, the Chief
Executive Officer of the Borrower is ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Chief Financial
Officer of the Borrower is ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
15
(e) Restricted
Subsidiaries. As at the date of this Agreement all
Subsidiaries of the Borrower are Restricted Subsidiaries.
(f) Financial
Statements. The consolidated balance sheet of the
Borrower and its Subsidiaries as at 31 December, 2006 (as set out in
Form 10-K filed by the Borrower with the Commission on 1 March, 2007 and the
related consolidated income statement, statement of changes in equity, cash
flow
statement and notes, comprising a summary of significant accounting policies
and
other explanatory notes of the Borrower and its Subsidiaries for the Financial
Year ending on that date, certified by the Auditors, present fairly the
consolidated financial position, financial performance and cash flows of the
Borrower and its Subsidiaries as of the date of such balance sheet and for
the
period covered by such income statement, statement of changes in equity and
cash
flow statement and were prepared in accordance with Generally Accepted
Accounting Principles. The Borrower had, as of the date of such
balance sheet, no material contingent obligations, liabilities for Taxes or
unusual forward or long term commitments not disclosed by, or reserved against
in, such balance sheet or the notes thereto. Since 2 August,
2007 (being the date of filing of the most recent
Form 10-Q by the Borrower with the Commission) and up until the date of this
Agreement, the Borrower has not suffered any Material Adverse Effect, incurred
any substantial or unusual loss or liability or undertaken or agreed to
undertake any substantial or unusual obligation.
(g) Title
to Assets. The Borrower and each of its Restricted
Subsidiaries owns and has good and marketable title to all of the assets with
a
book value in excess of the equivalent of €1,000,000 each, the ownership of
which is reflected in its most recent balance sheet referred to in Section
2.02(f) or which are necessary for the implementation of the Project or which
are referred to in the New Security Documents, except for those assets (if
any)
which are held under lease or for which the Borrower or such Restricted
Subsidiary has permanent or exclusive use rights. Such assets are
free from any restrictions or covenants which would be reasonably likely to
have
a Material Adverse Effect. Such assets are not subject to any Lien,
and neither the Borrower nor any of its Restricted Subsidiaries is subject
to
any contract, arrangement or law, whether conditional or unconditional, pursuant
to which any Lien on its assets may be created, except for Permitted Liens
or
otherwise as permitted under this Agreement.
(h) Material
Contracts. As of the date of this Agreement, neither the
Borrower nor any of its Restricted Subsidiaries is a party to, or committed
to
enter into, any agreement, other than such agreements as have been disclosed
by
the Borrower in a report filed with the Commission, that would be reasonably
likely to affect the judgement of a prospective lender considering whether
to
enter into this Agreement and lend to the Borrower.
(i) Compliance
with Law. The Borrower and each of its Subsidiaries is
in compliance in all material respects with all laws applicable to it and
presently in effect. To the Borrower's knowledge, no law is in effect
which may reasonably be expected to have a Material Adverse
Effect. All tax returns and reports of the Borrower and each of the
Subsidiary Guarantors and Significant Subsidiaries required by law to be filed
have been duly filed and all Taxes upon the Borrower and each of the Subsidiary
Guarantors and Significant Subsidiaries, their respective properties and income,
which are due and payable, have been paid, other than those currently payable
without penalty or interest or those being contested in good faith and by proper
proceedings and/or as to which adequate reserves have been set aside for the
payment thereof. The Borrower and each of its Subsidiaries are in
compliance with all applicable laws concerning money
laundering. Neither the Borrower nor any of its Subsidiaries nor any
of their respective officers, directors or authorised employees, agents or
representatives has:
16
(1) paid,
promised to pay or offered to pay, or authorised the payment of, any commission,
bribe, pay-off or kickback related to the Project that violates any applicable
law or entered into any agreement pursuant to which any such commission, bribe,
pay-off or kickback may or will at any time be paid; or
(2) offered
or given any thing of value to influence the action of a public official, or
threatened injury to person, property or reputation, in connection with the
Project in order to obtain or retain business or other improper advantage in
the
conduct of business.
(j) No
Default. None of the Borrower, the Subsidiary Guarantors or
the Significant Subsidiaries are in default under any material agreement or
instrument which is binding on it (other than intra-Group agreements) or by
which it or any of its properties or assets is bound and there exists no
Default.
(k) Environmental
and Social Compliance. The Borrower and each of its
Subsidiaries and their respective businesses, operations, assets, equipment,
property, leaseholds and other facilities are in material compliance with the
provisions of all applicable laws relating to Environmental Matters and Social
Matters. Each of the Borrower and its Subsidiaries has been issued
all required Authorisations relating to, and has received no complaint, order,
directive, claim, citation or notice from any Governmental Authority or other
person with respect to, air emissions, discharges to surface water or ground
water, noise emissions, solid or liquid waste disposal, the use, generation,
storage, transportation or disposal of toxic or hazardous substances or wastes,
health and safety, employment conditions, the protection of indigenous peoples,
cultural property, resettlement of persons or any other Environmental Matter
or
Social Matter.
(l) Litigation. Other
than as disclosed in the Borrower’s most recent report on Form 10-K or Form 10-Q
(as applicable) filed with the Commission, neither the Borrower nor any of
its
Restricted Subsidiaries is engaged in, or, to the best of its knowledge,
threatened by, any litigation, arbitration or administrative proceeding, the
outcome of which would reasonably be expected to have a Material Adverse
Effect.
17
|
Section
2.03.
|
Representations
Regarding the Agreements
|
The
Borrower represents and warrants as
follows:
(a) Corporate
Power. Each of the Borrower and its Subsidiaries has the
corporate power to enter into (or, in the case of the Licences, be granted),
and
perform its obligations under, each New Financing Agreement and Operational
Document to which it is a party (or, in the case of the Licences, which has
been
granted).
(b) Due
Authorisation; Enforceability; No Conflict. The New
Financing Agreements to which the Borrower and each Subsidiary Guarantor is
respectively a party have been duly authorised by each such
party. This Agreement has been duly executed by the Borrower and this
Agreement constitutes, and the other New Financing Agreements when executed
and
delivered by the Borrower and each Subsidiary Guarantor, as applicable, will
constitute, valid and legally binding obligations of each such party,
enforceable in accordance with their respective terms. The entering
into of the New Financing Agreements and the compliance with the terms thereof
by the Borrower and each Subsidiary Guarantor, as applicable:
(1) will
not result in violation of such party’s Charter, the Licences or any provision
contained in any law applicable to such party;
(2) will
not conflict with or result in the breach of any provision of, or require any
consent under, or result in the imposition of any Lien under, any agreement
or
instrument to which the Borrower or any Subsidiary Guarantor is a party or
by
which the Borrower, any Subsidiary Guarantor or any of their respective assets
is bound; and
(3) will
not constitute a default or an event which, with the giving of notice, the
passage of time or the making of any determination (or any combination thereof),
would constitute a default under any such agreement or instrument.
(c) Governmental
Authorisations. No Authorisations from any Governmental
Authority are required for the due execution, delivery or performance by the
Borrower or the Subsidiary Guarantors of any New Financing Agreement, or the
validity or enforceability thereof, or (except for the Licences and other
Authorisations required for broadcasting by the relevant Subsidiaries and for
other Authorisations already obtained prior to the date hereof) for the carrying
on of the business of the Borrower, the Subsidiary Guarantors and the
Significant Subsidiaries as it is carried on or is contemplated to be carried
on.
(d) Pari
PassuRanking. The Borrower’s payment
obligations under the New Financing Agreements rank at least pari passu with
claims of all of its other creditors, except for claims mandatorily preferred
by
laws applicable to companies generally.
(e) Security. Subject
to (i) registration at Companies Registry of Bermuda of the New Share Pledge
over the shares of Central European Media Enterprises N.V. and the New Contract
Assignment, (ii) registration at Companies House UK of the New Contract
Assignment, and (iii) service of a notice of assignment in respect of the New
Contract Assignment (substantially in the form of Schedule 1 thereto), each
New
Security Document will, when executed and delivered, constitute a valid and
perfected (or have the analogous effect to being perfected under applicable
law)
security interest in the collateral covered by such New Security Document,
securing payment of all principal, interest and other amounts payable to EBRD
under the New Financing Agreements. Except for the security interests
granted to EBRD under the Original Security Documents and to the Trustees
pursuant to the terms of the 2005 Indenture and the 2007 Indenture respectively,
there is no other security agreement or instrument creating or purporting to
create a Lien on the collateral secured by the New Security
Documents. The Security is not subject to avoidance on liquidation of
the Borrower or Central European Media Enterprises N.V. or in bankruptcy,
composition or other insolvency proceedings relating to the Borrower or Central
European Media Enterprises N.V.
18
(f) Operational
Documents.
|
|
(1)
|
As
at the date of this Agreement, the Operational Documents are in full
force
and effect without modification from the forms provided to EBRD under
Section 4.01(b).
|
|
|
(2)
|
The
Group has all broadcasting licences necessary to operate its business
as
currently conducted and, as at the date of this Agreement, the Licences
constitute all of the material broadcasting licences held by members
of
the Group.
|
|
|
(3)
|
All
of the Licences are in full force and effect and the grantee of each
Licence is in compliance in all material respects with all provisions
thereof.
|
|
|
(4)
|
None
of the Licences are the subject of any actual, pending or threatened,
challenge or revocation.
|
|
|
(5)
|
There
has occurred no breach, and no event which with the giving of notice,
the
passage of time or the making of any determination, or any combination
thereof, would constitute a breach, of the Framework
Agreement.
|
(g) Indentures. As
at the date of this Agreement, each of the 2005 Indenture and the 2007 Indenture
is in full force and effect without modification from the form provided to
EBRD
pursuant to Section 4.01(d) of the Original Loan Agreement and Section 4.01(d)
hereof.
(h) Taxes. There
is no Tax of any Governmental Authority to be imposed on or by virtue of the
execution, delivery or performance of any New Financing Agreement or necessary
to ensure the legality, validity, enforceability or admissibility in evidence
thereof in Bermuda, the Netherlands, the Netherlands Antilles and
England.
|
Section
2.04.
|
Acknowledgement
and Repetition
|
(a) The
Borrower acknowledges that it has made the representations and warranties
contained in Sections 2.01, 2.02 and 2.03 with the intention of inducing EBRD
to
enter into this Agreement and that EBRD has entered into this Agreement on
the
basis of, and in full reliance on, each of such representations and
warranties. The Borrower warrants, as of the date of this Agreement,
that it has no knowledge of any additional facts or matters the omission of
which makes any of such representations and warranties misleading or which
would
or might reasonably be expected to affect the judgement of a prospective lender
regarding lending to the Borrower.
19
(b) Any
representation or warranty given hereunder which specifies that such
representation and warranty is provided hereunder “as of the date of this
Agreement” shall only be given on the date of this Agreement and shall not be
deemed to be repeated hereafter in connection with any Disbursement made
pursuant to this Agreement. In respect of all other representations
and warranties provided in this Article II, such representations and warranties
shall be deemed to be repeated on submission of each Disbursement request,
on
each Disbursement date and on each Interest Payment Date.
|
Amount
and Currency
|
On
and subject to the terms and conditions of this Agreement, EBRD agrees to lend
to the Borrower, on a revolving basis during the Commitment Period, a maximum
aggregate principal amount not to exceed €50,000,000 consisting
of:
(1) the
A Loan in an amount not to exceed €25,000,000; and
(2) the
B Loan in an amount not to exceed €25,000,000.
|
Section
3.02.
|
Disbursements
|
(a) Subject
to Section 3.03 and Article IV, the Borrower may borrow and reborrow the
Commitment which shall be disbursed by EBRD from time to time on any Business
Day during the Commitment Period in one or more Disbursements upon request
of
the Borrower; provided that not more than 10 Disbursements (excluding Renewal
Disbursements) may be made in any calendar year. The Borrower may
request a Disbursement by submitting to EBRD a facsimile transmission followed
by an original application for such Disbursement, in the form of Exhibit A
and
in substance satisfactory to EBRD, at least 10 Business Days prior to the
proposed date of such Disbursement. Such application shall, unless
EBRD otherwise agrees, be irrevocable and binding on the Borrower.
(b) Each
Disbursement (other than a Disbursement of the entire undisbursed amount of
the
Loan) shall be made (i) in an amount not to exceed the Available Amount as
at
the date of such Disbursement, and (ii) in an amount of not less than €5,000,000
and in integral multiples of €1,000,000.
20
|
Suspension
and Cancellation
|
(a) From
time to time, EBRD may, by notice to the Borrower, suspend or cancel the right
of the Borrower to all or any portion of any further Disbursements:
(1) if
an Event of Default has occurred and is continuing; or
(2) if
the Board of Governors of EBRD has decided in accordance with Article 8,
paragraph 3, of the Agreement Establishing the European Bank for Reconstruction
and Development that access by any Country of Operation to EBRD resources should
be suspended or otherwise modified; provided that in the event of a decision
pursuant to this Section 3.03(a)(2), only further Disbursements to be applied
to
a Project in such Country of Operation shall be affected.
Upon
the
issuance of such notice by EBRD, the right of the Borrower to further
Disbursements shall be suspended or cancelled as indicated in the
notice. The exercise by EBRD of the right of suspension shall not
preclude EBRD from exercising its right of cancellation as provided in this
Section 3.03, either for the same or another reason, and shall not limit any
other rights of EBRD under the New Financing Agreements.
(b) The
Borrower shall have the right at any time, on not less than 10 Business Days'
notice to EBRD, to cancel in whole or in part the then unutilised portion of
the
Commitment; provided that:
(1) the
Borrower shall pay to EBRD on the date of cancellation all accrued commitment
charges on the cancelled portion of the Commitment and all other amounts due
and
payable hereunder and a cancellation fee of 0.25% of the cancelled amount of
the
Commitment; and
(2) in
the case of a partial cancellation of the Commitment, such cancellation shall
be
in an amount of not less than €5,000,000 and in an integral multiple of
€1,000,000 and the Commitment shall be reduced by the amount of such
cancellation during each of the remaining periods set forth in Schedule
1.
Any
such
notice of cancellation shall be irrevocable and binding on the
Borrower. No portion of the Commitment which is cancelled by the
Borrower may be reinstated.
(c) Any
undisbursed amount of the Loan shall automatically be cancelled at the end
of
the Commitment Period.
|
Charges,
Commissions and Fees
|
21
The
commitment charge shall accrue from day to day and be calculated on the basis
of
the actual number of days elapsed in the relevant period and a 360-day year
and
shall be due and payable in arrears on each Quarterly Date.
(b) The
Borrower shall pay to EBRD a front-end commission of (i) 1.5% of the A Loan,
and
(ii) 1.5% of the B Loan. Such front-end commission on the A Loan
shall be due and payable not later than the first Disbursement or seven Business
Days after the date of this Agreement, whichever is earlier, and on the B Loan
shall be due and payable not later than the first Disbursement or seven Business
Days after the date EBRD receives a formal commitment from a Participant to
acquire a Participation, whichever is earlier .
(c) The
Borrower shall pay to EBRD during the term of this Agreement an annual loan
administration fee in the amount of €5,000 per annum. Such loan
administration fee shall be due and payable in advance, for the initial year,
not later than the first Disbursement or seven Business Days after the date
of
this Agreement, whichever is earlier and, for each subsequent year, on the
first
Quarterly Date following each anniversary of the date hereof. In the
event that a Participant hereafter acquires a Participation, the Borrower shall
pay to EBRD during the term of this Agreement an additional annual loan
administration fee for each such Participant in an amount per annum of €5,000
less any such loan administration fee paid in respect of that same Participant
under Section 3.04(d) of the Original Loan Agreement. Such additional
loan administration fee shall be due and payable in advance, for the initial
year, within 30 days after receipt by the Borrower of notice from EBRD that
such
Participant has acquired such Participation and, for each subsequent year,
on
the first Quarterly Date following each anniversary of the date on which such
Participant acquired such Participation.
(d) Subject
to Section 3.11(a), the charges, commissions and fees referred to in this
Section 3.04 are exclusive of any Tax which might be chargeable in connection
with such charges, commissions or fees. If any such Tax becomes
chargeable, the Borrower shall pay such Tax to EBRD at the same time that the
relevant charge, commission or fee becomes due and payable.
|
Section
3.05.
|
Interest
|
(a) Except
as provided in Section 3.06, the Borrower shall pay interest on the principal
amount of each Disbursement from time to time outstanding during each Interest
Period for such Disbursement at a rate equal to the sum of the Margin and the
Interbank Rate for such Interest Period.
(b)
(1) The
Borrower may select an Interest Period for a Disbursement in the application
for
that Disbursement.
(2)
Subject
to this Section 3.05(b), the Borrower may select an Interest Period of up to
three months, provided that (i) each Interest Period must end on an Interest
Payment Date; (ii) no Interest Period may be less than 15 Business Days; and
(iii) the Borrower must select an Interest Period to ensure that (when
aggregated with the Available Amount) there are sufficient Disbursements which
have an Interest Period ending on a Reduction Date for the scheduled reduction
of Commitment to occur.
22
(3)
Each
Interest Period for a Disbursement shall start on the date of Disbursement
thereof.
|
(c)
|
Interest
shall:
|
(1) accrue
from and including the first day of an Interest Period to but excluding the
last
day of such Interest Period;
(2) be
calculated on the basis of the actual number of days elapsed and a 360-day
year;
and
(3) be
due and payable on the Interest Payment Date which is the last day of the
relevant Interest Period.
(d) On
each Interest Determination Date, EBRD shall determine the interest rate
applicable during the relevant Interest Period and promptly give notice thereof
to the Borrower. Each determination by EBRD of the interest rate
applicable to any portion of the Loan shall be final, conclusive and binding
upon the Borrower unless shown by the Borrower to the satisfaction of EBRD
that
any such determination has involved manifest error.
|
Default
Interest
|
(a) If
the Borrower fails to pay when due any amount payable by it under this
Agreement, the overdue amount shall bear interest at a rate equal to the sum
of:
(1) 2.0%
per annum;
(2) the
Margin; and
(3) the
interest rate per annum offered in the Euro-zone interbank market on the date
two Business Days prior to the first day of the relevant Default Interest Period
(or, at EBRD's option, on the first day of such Default Interest Period) for
a
deposit in the Loan Currency of an amount comparable to the overdue amount
for a
period equal to the relevant Default Interest Period or, if EBRD determines
that
deposits in the Loan Currency are not being offered in the Euro-zone interbank
market in such amounts or for such period, the cost to EBRD (expressed as a
rate
per annum) of funding the overdue amount from whatever sources it
selects.
(b) Default
interest shall:
(1) accrue
from day to day from the due date to the date of actual payment, after as well
as before judgement, if any;
23
(2) be
calculated on the basis of the actual number of days elapsed and a 360-day
year;
(3) be
compounded at the end of each Default Interest Period; and
(4) be
due and payable forthwith upon demand.
(c) Each
determination by EBRD of the interest rates applicable to overdue amounts and
of
Default Interest Periods shall be final, conclusive and binding upon the
Borrower unless shown by the Borrower to the satisfaction of EBRD that any
such
determination has involved manifest error.
|
Section
3.07.
|
Repayment
|
The
Borrower shall repay each
Disbursement on the last day of the Interest Period for such Disbursement (and
subject always to the provisions of Section 3.05(b)) and, provided that the
Borrower submits an application for Disbursement in accordance with the
provisions of Section 3.02(a), the Borrower may refinance any maturing
Disbursement with a Renewal Disbursement. Subject to the terms of
this Agreement, amounts repaid during the Commitment Period may be reborrowed
hereunder.
|
Prepayment
|
(a) The
Borrower shall have the right at any time, on not less than 10 Business Days'
prior notice to EBRD, to prepay all or any part of the principal amount of
the
Loan then outstanding; provided that:
(1) the
Borrower shall pay to EBRD at the same time all accrued interest and other
amounts payable on the principal amount of the Loan to be prepaid (including,
in
the case of any amount of the Loan prepaid other than on the last day of an
Interest Period, all amounts payable in accordance with Section 3.12(a)) and
all
other amounts due and payable hereunder; and
(2) in
the case of a partial prepayment, such prepayment shall be in an amount of
not
less than €5,000,000 and in an integral multiple of €1,000,000, shall be applied
pro rata between the A Loan and the B Loan in proportion to the respective
principal amounts thereof then outstanding.
Any
such
notice of prepayment by the Borrower shall be irrevocable and binding on the
Borrower and, upon delivery of such notice, the Borrower shall be obligated
to
prepay the Loan in accordance with the terms thereof. Subject to the
terms of this Agreement, amounts of the Loan prepaid by the Borrower under
this
Section 3.08(a) may be reborrowed.
(b) If
a Change of Control Triggering Event occurs, EBRD will have the right to require
the Borrower to prepay all or any part (equal to €50,000 and any integral
multiple of €1,000 in excess thereof) of the principal amount of the Loan then
outstanding plus accrued and unpaid interest and other amounts payable to the
date of repayment.
24
Within
30
days following any Change of Control Triggering Event, the Borrower will provide
notice to EBRD stating:
|
|
(1)
|
that
a Change of Control Triggering Event has occurred and that EBRD has
the
right to require the Borrower to prepay all or any of the principal
amount
of the Loan then outstanding in accordance with this Section 3.08(b)
plus
accrued and unpaid interest and other amounts payable to the date
of
repayment;
|
|
|
(2)
|
the
prepayment date, which shall be no earlier than 30 days nor later
than 60
days from the date such notice is served (the “Change of Control Payment
Date”); and
|
|
|
(3)
|
the
circumstances and relevant facts regarding the Change of
Control.
|
If,
not
less than 10 days prior to the Change of Control Payment Date, EBRD shall have
given notice to the Borrower that it requires a prepayment and the corresponding
principal amount thereof, each in accordance with this Section 3.08(b) (a
“Change of Control Prepayment Notice”) , the Borrower shall pay to EBRD on the
Change of Control Payment Date such principal amount plus accrued interest
and
other amounts payable in connection therewith as notified by EBRD to the
Borrower. No amounts repaid pursuant to this Section 3.08(b) may be
reborrowed and all undisbursed amounts of the Commitment shall forthwith
automatically be cancelled on and from the date of the Change of Control
Prepayment Notice.
(c) The
provisions of Sections 6.06(b) and (c) shall govern any prepayment required
to
be made hereunder following an Asset Disposition (as defined in the 2005
Indenture).
(d) If
the Borrower shall (whether voluntarily or involuntarily) make any prepayment,
repurchase or early redemption of any Long-term Debt borrowed or raised after
the date of this Agreement (referred to in this Section 3.08(d) as “New
Long-term Debt”) or make any repayment of any New Long-term Debt pursuant to any
provision of any agreement or note which provides directly or indirectly for
acceleration of repayment in time or amount, then in any such case, if EBRD
so
requires by notice to the Borrower, there shall be a contemporaneous
cancellation of a proportionate amount thereto of the Commitment. To
the extent that such proportionate amount exceeds the Available Amount, the
Borrower shall prepay such principal amount then outstanding of the Loan as
is
equal to such excess. No portion of the Commitment which is cancelled
pursuant to this Section 3.08(d) may be reinstated and no amounts repaid
pursuant to this Section 3.08(d) may be reborrowed.
|
Payments
|
(a) All
payments of principal, interest, charges, commissions, fees, expenses and any
other amounts due to EBRD under this Agreement shall be made, without set-off
or
counterclaim, in the Loan Currency (or, in the case of costs and expenses of
EBRD, in the currency in which such costs and expenses were incurred), for
value
on the due date, to such account as EBRD may from time to time designate by
notice to the Borrower.
25
(b) The
sums to be disbursed by EBRD to the Borrower hereunder shall be payable in
the
Loan Currency for value, unless otherwise agreed by the Borrower and EBRD,
on
the value date requested by the Borrower in its Disbursement application and
to
such correspondent account as the Borrower may designate in its Disbursement
application (with instructions to transfer such sums, at the Borrower's risk
and
expense, to such account as the Borrower may designate in its Disbursement
application).
(d) EBRD
shall have the right, to the fullest extent permitted by law, to set off any
amount owed by EBRD to the Borrower, whether or not matured, against any amount
then due and payable by the Borrower under any New Financing Agreement, whether
or not EBRD has demanded payment by the Borrower of such amount and regardless
of the currency or place of payment of either such amount. EBRD shall
have the right, to the fullest extent permitted by law, to deduct from the
proceeds of any Disbursement any charges, commissions, fees, expenses and other
amounts then due and payable by the Borrower to EBRD under any New Financing
Agreement.
|
Section
3.10.
|
Insufficient
Payments
|
(a) If
EBRD at any time receives less than the full amount then due and payable to
it
under this Agreement, EBRD shall have the right to allocate and apply the amount
received in any way or manner and for such purpose or purposes under this
Agreement as EBRD in its sole discretion determines, notwithstanding any
instruction that the Borrower may give to the contrary.
|
Section
3.11.
|
Taxes
|
(a) The
Borrower shall pay or cause to be paid, or reimburse EBRD on demand for, all
present and future Taxes, now or at any time hereafter levied or imposed by
any
Governmental Authority of any jurisdiction out of which or through which
payments hereunder are made, on or in connection with the payment of any amounts
due to EBRD under this Agreement, whether in respect of the A Loan or the B
Loan. For the avoidance of doubt, this Section 3.11(a), together with
Sections 3.04(d) and 8.07(a), shall not apply with respect to any Tax assessed
on the Lender by reference to the net income received or receivable (but not
any
sum deemed to be received or receivable) by the Lender.
26
(b) All
payments of principal, interest and other amounts due to EBRD under this
Agreement, whether in respect of the A Loan or the B Loan, shall be made free
and clear of, and without deduction or withholding for or on account of, any
Taxes; provided, however, that, in the event that the Borrower is prevented
by
operation of law or otherwise from making such payments free and clear of such
deductions or withholdings, the principal, interest or other amount (as the
case
may be) due under this Agreement shall be increased to such amount as may be
necessary to remit to EBRD the full amount it would have received had such
payment been made without such deductions or withholdings.
|
Unwinding
Costs
|
(a) If,
for any reason (including, without limitation, an acceleration pursuant to
Section 7.02), any portion of the Loan is repaid or prepaid, or becomes due
and
payable on a date other than the last day of an Interest Period, the Borrower
shall pay to EBRD on demand the amount, if any, by which:
(1) the
interest which would have accrued on such portion of the Loan from the date
on
which such portion of the Loan has become due and payable to the last day of
the
then current Interest Period at a rate equal to the Interbank Rate for such
Interest Period;
exceeds:
(2) the
interest which EBRD would be able to obtain if it were to place an amount equal
to such portion of the Loan on deposit with a leading bank in the Euro-zone
interbank market for the period commencing on the date on which such portion
of
the Loan has become due and payable and ending on the last day of the then
current Interest Period.
(b) If
any overdue amount is paid on a date other than the last day of a Default
Interest Period, the Borrower shall pay to EBRD on demand the amount, if any,
by
which:
(1) the
interest which would have accrued on such overdue amount from the date of
receipt of such overdue amount to the last day of the then current Default
Interest Period at a rate equal to the rate specified in Section 3.06(a)(3)
for
such Default Interest Period;
exceeds:
(2) the
interest which EBRD would be able to obtain if it were to place an amount equal
to such overdue amount on deposit with a leading bank in the Euro-zone interbank
market for the period commencing on the Business Day immediately following
the
date of receipt of such overdue amount and ending on the last day of the then
current Default Interest Period.
(c) The
Borrower shall forthwith upon notice from EBRD reimburse EBRD for any costs,
expenses and losses incurred by EBRD or any Participant, and not otherwise
recovered by EBRD under Sections 3.12(a) and (b), as a result of the occurrence
of an Event of Default, prepayment of any portion of the Loan on a date other
than the last day of an Interest Period, failure by the Borrower to pay any
amount when due hereunder, failure by the Borrower to borrow in accordance
with
a Disbursement application submitted pursuant to Section 3.02 or failure by
the
Borrower to make any prepayment in accordance with a notice of prepayment
delivered pursuant to Section 3.08.
27
(d) A
certificate of EBRD as to any amount payable under this Section 3.12 shall
be
final, conclusive and binding on the Borrower unless shown by the Borrower
to
the satisfaction of EBRD to contain manifest error.
|
Section
3.13.
|
Increased
Costs
|
(1) the
introduction of, or any change in, any applicable law or any applicable
guideline or policy (whether or not having the force of law), or any change
in
the interpretation or application thereof by any governmental or regulatory
authority charged with the administration thereof; and/or
(2) any
compliance with any request from, or requirement of, any central bank or other
monetary or other authority;
which,
subsequent to the date of this Agreement:
(A) imposes,
modifies or deems applicable any reserve, special deposit or similar requirement
against assets held by, or deposits with or for the account of, or loans by,
EBRD or such Participant;
(B) imposes
a cost on EBRD or such Participant as a result of it having made the Loan or
acquired its Participation, as the case may be, or reduces the rate of return
on
the overall capital of EBRD or such Participant which it would otherwise have
been able to achieve;
(C) changes
the basis of Tax on payments received by EBRD or such Participant in respect
of
the Loan or its Participation, as the case may be, other than by a change in
taxation of the overall net income of EBRD or such Participant; or
(D) imposes
on EBRD or such Participant any other condition regarding the making or
maintaining of the Loan or the acquisition or maintaining of its Participation,
as the case may be.
(b) EBRD
shall furnish to the Borrower with any such demand a certificate of EBRD or
the
relevant Participant certifying:
(1) that
such net incremental costs have been incurred;
28
(2) the
circumstances giving rise to such net incremental costs;
(3) that,
in the opinion of EBRD or such Participant, it has exercised reasonable efforts
to minimise or eliminate such net incremental costs; and
(4) the
amount of such net incremental costs.
The
certificate of EBRD or any Participant as to the amount of such net incremental
costs shall be final, conclusive and binding on the Borrower unless shown by
the
Borrower to the satisfaction of EBRD to contain manifest error.
(c) Notwithstanding
anything in Section 3.08, the Borrower shall have the right, on not less than
30
days' notice to EBRD (which notice shall be irrevocable and binding on the
Borrower), to prepay on any Interest Payment Date relating thereto, any
Disbursement constituting a portion of the Loan on which EBRD informs the
Borrower that such net incremental costs are then being charged, provided that
the Borrower shall pay to EBRD at the same time all accrued interest and other
amounts (including, any such net incremental costs) payable on that portion
of
the principal amount of the Loan to be prepaid and all other amounts due
hereunder.
|
Illegality
|
Notwithstanding
anything in this
Agreement, if it is or becomes unlawful in any jurisdiction for EBRD to make,
maintain or fund the Loan or for any Participant to maintain or fund its
Participation, then:
(1) upon
request by EBRD, the Borrower shall, on the next Interest Payment Date on which
each relevant Disbursement falls due for repayment or such earlier date as
EBRD
may specify, prepay that portion of the principal amount of the Loan which
EBRD
notifies to the Borrower as being affected by such change, together with all
accrued interest and other amounts payable thereon; and
(2) upon
notice from EBRD, any portion of the Loan which EBRD notifies to the Borrower
as
being affected by such change and which has not theretofore been disbursed
shall
be cancelled immediately.
|
Section
3.15.
|
Loan
Account
|
EBRD
shall open and maintain on its
books an account in the Borrower's name showing the Disbursements and repayments
thereof and the computation and payment of interest, charges, commissions,
fees
and other amounts due and sums paid hereunder. Such account shall be
final, conclusive and binding on the Borrower as to the amount at any time
due
from the Borrower hereunder, absent manifest error.
29
ARTICLE
IV - CONDITIONS PRECEDENT
|
First
Disbursement
|
The
obligation of EBRD to make the
first Disbursement shall be subject to the prior fulfilment, in form and
substance satisfactory to EBRD, or at the sole discretion of EBRD the waiver,
whether in whole or part and whether subject to conditions or unconditional,
of
the following conditions precedent:
(a) New
Financing Agreements. EBRD shall have received duly executed
originals of the following agreements:
|
|
(1)
|
the
New Subsidiary Guarantees;
|
|
|
(2)
|
the
New Intercreditor Agreement; and
|
|
|
(3)
|
the
New Security Documents referred to in Section
4.01(c).
|
(b) Licences. EBRD
shall have received certified copies of the following Licences:
Romania
|
|
·
|
Acasa
TV (satellite – renewal)
|
|
|
·
|
▇▇▇▇▇.▇▇
(satellite)
|
Ukraine
|
|
·
|
Studio
1+1 Licence Number 0028-m (renewal of licence no.
0550)
|
|
|
·
|
Gravis
Licence Number 2640 (renewal of licence no. 2462 (formerly no.
2241))
|
|
|
·
|
Gravis
Licence Number 2750 (renewal of licence no. 2581 (formerly no.
2331))
|
|
|
·
|
Gravis
Licence Number 0032-m
|
|
|
·
|
Gravis
Licence Number 0007-m
|
(c) Security. The
Security shall have been validly created and perfected (or have an analogous
effect to being perfected under applicable law) in a manner satisfactory to
EBRD
and EBRD shall have received duly executed originals of the following New
Security Documents, together with any document, recording, filing, notification,
registration, notarisation or other evidence required, in the opinion of EBRD,
for the creation, validity, perfection (or having an analogous effect to
perfection under applicable law) or priority of the Security of EBRD in or
under
such New Security Documents:
(1) the
New Share Pledges; and
(2) the
New Contract Assignment.
30
(d) 2007
Indenture. EBRD shall have received a certified copy of the
2007 Indenture.
(e) Charters. EBRD
shall have received certified copies of the Charters (and, if relevant,
certificates of registration (or evidence of filing thereof) and certificates
of
compliance or good standing dated not more than five Business Days prior to
the
date of the application for the first Disbursement) of the Borrower and the
Subsidiary Guarantors, each as amended to date.
(f) Corporate
Authorisations. EBRD shall have received certified copies of
all corporate (including, if required, shareholder) Authorisations necessary
for
the due execution, delivery and performance of the New Financing Agreements,
and
any other documents in implementation thereof, by the Borrower and the
Subsidiary Guarantors, as applicable, and for the transactions contemplated
thereby, including the authorisations (whether by law, Charter, resolution
or
otherwise) of the persons signing the New Financing Agreements to sign such
documents and to bind the respective parties thereby.
(g) Specimen
Signatures. EBRD shall have received:
(1) a
certificate of incumbency and authority of the Borrower substantially in the
form of Exhibit B; and
(2) a
certificate of an appropriate officer of each of the Subsidiary Guarantors
certifying the specimen signature of each person authorised to sign, on behalf
of such party, the New Financing Agreements to be entered into and performed
by
such party.
(h) Governmental
and Other Authorisations. EBRD shall have received originals
or certified copies of all Authorisations, including creditors' consents,
necessary for the execution, delivery and performance of the New Financing
Agreements by the Borrower and the Subsidiary Guarantors and for the
transactions contemplated thereby, including:
(1) the
borrowing by the Borrower under this Agreement;
(2) obligations
of the Subsidiary Guarantors under the New Subsidiary Guarantees;
(3) the
creation of the Security; and
(4) the
remittance to EBRD of all monies payable in respect of the New Financing
Agreements,
other
than any Authorisation of a routine or minor nature which is not necessary
at
the time of the proposed Disbursement or which may only be obtained as the
Project progresses and in each case which is customarily granted in due course
after timely application, and in respect of which the Borrower or the relevant
Subsidiary Guarantor is not aware of any reason for it being unable to obtain
in
due course such Authorisation.
31
(i) Auditors
Letter. EBRD shall have received a copy of a letter to the
Auditors from the Borrower substantially in the form of Exhibit C.
(j) Participations. EBRD
shall have received from Participants, upon terms satisfactory to EBRD, formal
commitments by such Participants, through the execution of one or more New
Participation Agreements for the acquisition of Participations in the B Loan
in
an aggregate amount equal to the full amount of the B Loan.
(k) Process
Agent Appointments. EBRD shall have received written
confirmation from the agents for service of process appointed by the Borrower
and the Subsidiary Guarantors pursuant to the New Financing Agreements of their
acceptances of such appointments.
(l) Legal
Opinions. EBRD shall have received the following legal
opinions regarding such matters incident to the transactions contemplated by
the
New Financing Agreements and Operational Documents as EBRD reasonably
requests:
(1) the
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, special Bermuda counsel to the
Borrower;
(2) the
opinion of Houthoff Buruma, special Netherlands counsel to EBRD;
(3) the
opinion of ▇▇▇▇▇▇ Kunneman ▇▇▇▇▇▇▇▇▇, special Netherlands Antilles counsel
to
EBRD; and
(4) the
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, special English counsel to EBRD.
|
All
Disbursements
|
The
obligation of EBRD to make any
Disbursement, including (except as otherwise provided) each Renewal
Disbursement, shall also be subject to the fulfilment, in form and substance
satisfactory to EBRD, or at the sole discretion of EBRD the waiver, whether
in
whole or part and whether subject to conditions or unconditional, of the
conditions that, on the date of the Borrower's application for such Disbursement
(other than in the case of a Renewal Disbursement) and on the date of such
Disbursement:
(a) Continuing
Validity of Documents. All agreements, documents and
instruments delivered to EBRD pursuant to Section 4.01 (other than Section
4.01(d) in the event that the 2007 Notes have been repaid) shall be in full
force and effect and unconditional (except for this Agreement having become
unconditional, if that is a condition of any such agreement).
(b) Representations
and Warranties. Subject to Section 2.04(b), the
representations and warranties made or confirmed by the Borrower and each
Subsidiary Guarantor in the New Financing Agreements shall be true on and as
of
such dates with the same effect as though such representations and warranties
had been made on and as of such dates.
32
(c) No
Default. No Default (or, in the case of a Renewal
Disbursement, no Event of Default) shall have
occurred and be continuing and the Borrower shall not, as a result of such
Disbursement, be in violation of its Charter, any provision contained in any
agreement or instrument to which the Borrower is a party (including this
Agreement) or by which the Borrower is bound or any law applicable to the
Borrower.
(d) No
Material Adverse Change. Nothing shall have occurred which,
in the reasonable opinion of EBRD, is reasonably likely to have a Material
Adverse Effect.
(e) Use
of Proceeds. The proceeds of such Disbursement (other than
Renewal Disbursements) shall be needed for the following purposes:
(1) until
the aggregate principal amount of Disbursements (other than Renewal
Disbursements) reaches €50,000,000, the proceeds of each such Disbursement shall
be needed for the purposes of the Project; and
(2) thereafter,
the proceeds of each Disbursement (other than Renewal Disbursements) shall
be
needed in connection with the business operations (including the Project) of
the
Borrower’s Subsidiaries in the Countries of Operation or the treasury operations
of the Borrower and its Subsidiaries,
and
EBRD
shall have received such evidence as to the proposed utilisation of the proceeds
of such Disbursement and the utilisation of the proceeds of any such prior
Disbursement as EBRD reasonably requests.
(f) Fees
and Expenses. EBRD shall have received payment of all
amounts due and owing to it under the New Financing Agreements, including all
fees and expenses described in Section 3.04 and Section 5.13.
(g) Disbursement
Application. EBRD shall have received an original of the
Borrower's timely application for such Disbursement substantially in the form
of
Exhibit A.
(h) Other. EBRD
shall have received such other documents and legal opinions as EBRD may
reasonably request.
|
Participations
|
Notwithstanding
anything in this Agreement to the contrary, the obligation of EBRD to make
any
Disbursement shall also be subject to the conditions that:
(1) immediately
after such Disbursement, the ratio of the aggregate amount of the A Loan to
the
aggregate amount of the B Loan shall be one to one; and
(2) EBRD
shall not in any event be obligated to make any Disbursement of the B Loan
except to the extent that corresponding funds in an aggregate amount equal
to
the amount of such Disbursement of the B Loan are provided to EBRD by
Participants pursuant to Participations.
33
ARTICLE
V - AFFIRMATIVE COVENANTS
|
Section
5.01.
|
Corporate
Existence; Continuity of
Business
|
(a) The
provisions of Section 4.5 of the 2005 Indenture (together with the definitions
set out in the 2005 Indenture insofar as they relate thereto) are hereby
incorporated herein mutatis mutandis as if set out herein in
full.
(b) The
Borrower shall, and shall procure that its Subsidiaries shall, conduct their
businesses with due diligence and efficiency, in accordance with sound financial
and business practices and in compliance with all applicable laws, including
all
money laundering laws. The Borrower shall use procurement methods
which ensure a sound selection of goods and services at fair market value and
that the Borrower is making its capital investments in a cost effective
manner.
|
Section
5.02.
|
Project
Implementation and Use of
Proceeds
|
|
Business
Plan and Budget
|
(a) The
Borrower shall ensure that the Business Plan is updated on an annual basis
as at
the last day of each Financial Year, and shall provide a copy of each such
updated Business Plan to EBRD promptly (and in any event within 10 Business
Days) after the adoption thereof by the Board of Directors of the
Borrower.
(b) Without
prejudice to Section 5.03(a), the Borrower shall notify EBRD of any amendment
from time to time to the Business Plan, where such amendment results in a
reduction of at least 20% against the prevailing consolidated Segment EBITDA
for
the then current Financial Year and the next succeeding Financial Year, as
reported to EBRD in the then most recent Business Plan. Notification
by the Borrower under this Section 5.03(b) shall be made promptly (and in any
event within 10 Business Days) after the adoption of any such amendment by
the
Board of Directors of the Borrower.
(c) The
Borrower shall adopt a Budget in respect of each Financial Year, and shall
provide a copy of such Budget to EBRD within 90 days after the last day of
the
previous Financial Year or, if earlier, promptly (and in any event within 10
Business Days) after the adoption thereof by the Board of Directors of the
Borrower.
34
|
Section
5.04
|
Environmental
and Social Compliance
|
(b) The
Borrower shall and shall procure that its Subsidiaries shall observe all
applicable laws and standards on employment, including those relating to the
employment of children and young people, discrimination at work, and forced
labour. Such applicable laws and standards shall include (i) the
International Labour Organisation’s fundamental conventions concerning the
abolition of child labour, the elimination of discrimination at the workplace
and the elimination of forced and compulsory labour and (ii) national
law.
|
Section
5.05.
|
Insurance
|
The
Borrower shall and shall procure
that the Subsidiary Guarantors and Significant Subsidiaries shall maintain
insurance against loss, damage and liability in relation to their business
and
assets of a type and in an amount as is usual for companies carrying on a
business such as that carried on by them in their respective geographic markets
and will on demand by EBRD provide to EBRD copies of the policies relating
thereto.
|
Accounting
|
(a) The
Borrower shall maintain books of account and other records adequate to present
fairly the consolidated financial position, financial performance and cash
flows
of the Borrower and its Subsidiaries and the results of its operations
(including the progress of the Project) in conformity with Generally Accepted
Accounting Principles.
(b) The
Borrower shall maintain as auditors of the Borrower a firm of independent
accountants of international standing.
(c) The
Borrower shall authorise, by a letter substantially in the form of Exhibit
C,
the Auditors to communicate directly with EBRD at any time regarding the
Borrower's accounts and operations.
|
Continuing
Governmental and Other
Authorisations
|
The
Borrower shall procure that all
Authorisations (i) required for the purposes described in Sections 4.01(f)
and
4.01(h) and for ensuring the legality, validity and enforceability of the New
Financing Agreements, and (ii) required from time to time for the carrying
out
of the Project, are obtained, complied with and maintained in force (or, where
appropriate, renewed). The Borrower shall procure that all the
conditions and restrictions contained in, or imposed by, such Authorisations
are
performed and observed.
35
|
Security
|
(a) The
Borrower shall and, in respect of the New Share Pledge over the shares of CME
Media Enterprises B.V., shall procure that Central European Media Enterprises
N.V. shall create, perfect, maintain and, as appropriate, renew the Security
in
a manner satisfactory to EBRD.
(b) The
Borrower shall procure that EBRD shall be entitled to share, on a pari passu
basis with each of the 2005 Trustee and the 2007 Trustees (as trustee for the
holders of the 2005 Notes and the 2007 Notes respectively), any security
interest to which it becomes entitled pursuant to the terms of the 2005
Indenture or the 2007 Indenture so long as any amount is or may become
outstanding under the New Financing Agreements.
|
Compliance
with Other Obligations
|
The
Borrower shall and shall procure
that each of the Subsidiary Guarantors and Significant Subsidiaries shall comply
in all material respects with all material agreements (other than intra-Group
agreements) to which the Borrower or such Restricted Subsidiary is a party
or by
which it or any of its properties or assets is bound.
|
Section
5.10.
|
Taxes
|
(a) The
Borrower shall and shall procure that each of the Subsidiary Guarantors and
Significant Subsidiaries shall pay when due all of their Taxes, including any
Taxes against any of their properties, other than Taxes which are being
contested in good faith and by proper proceedings and/or as to which adequate
reserves have been set aside for the payment thereof. The Borrower
shall and shall procure that each of the Subsidiary Guarantors and Significant
Subsidiaries shall make timely filings of all Tax returns and governmental
reports required to be filed or submitted under any applicable law.
(b) The
Borrower shall and shall procure that each of its relevant Subsidiaries shall
pay all Taxes payable on, or in connection with, the execution, issue, delivery,
registration or notarisation of any New Financing Agreement or any other
document related to this Agreement. Upon notice from EBRD, the
Borrower shall pay to EBRD, or reimburse EBRD for, an amount equal to any such
Taxes levied on or paid by EBRD.
|
Section
5.11.
|
Operational
Documents
|
(a) The
Borrower shall and shall procure that each of its relevant Subsidiaries shall
obtain and maintain in full force and effect (or, where any such Licence is
to
expire during the term of this Agreement, renew) each of the Licences and shall
procure that each of its relevant Subsidiaries shall comply at all times in
all
material respects with all provisions thereof.
(b) The
Borrower shall and shall procure that CME Media Enterprises B.V. shall maintain
the Framework Agreement in full force and effect and perform its obligations
under, and not commit any breach of or default under, such
agreement.
36
|
Further
Documents
|
The
Borrower shall execute all such other documents and instruments and do all
such
other acts and things as EBRD may determine are necessary or desirable to give
effect to the provisions of the New Financing Agreements (or to procure the
giving effect to such provisions) and to cause the New Financing Agreements
to
be duly registered, notarised and stamped in any applicable
jurisdiction. The Borrower hereby irrevocably appoints and
constitutes EBRD as the Borrower's true and lawful attorney with right of
substitution (in the name of the Borrower or otherwise) to execute such
documents and instruments and to do such acts and things in the name of and
on
behalf of the Borrower in order to carry out the provisions hereof
.
|
Section
5.13.
|
Costs
and Expenses
|
(a) The
Borrower shall, whether or not any Disbursement is made, pay to EBRD or as
EBRD
may direct, within 30 days of EBRD furnishing to the Borrower the invoice
therefor (but, in any event, prior to the first Disbursement in the case of
costs and expenses incurred and invoiced to the Borrower prior to the date
of
the first Disbursement), all reasonable out-of-pocket costs and expenses
(including, reasonable travel expenses and the reasonable fees and
expenses of outside counsel to EBRD and all other reasonable financial,
accounting, environmental and other consulting fees and expenses) incurred
by
EBRD in connection with:
(1) the
assessment, preparation, negotiation and arrangement of the Loan by
EBRD;
(2) the
preparation, review, negotiation, execution and, where appropriate, stamping,
registration and notarisation of the New Financing Agreements, the Operational
Documents and the Security and any other documents related thereto;
(3) the
giving of any legal opinions hereunder; and
(4) the
administration of the New Financing Agreements, including visits by
environmental staff (but, for the avoidance of doubt, excluding amounts
representing any salaries of employees of EBRD).
(b) The
Borrower shall pay to EBRD or as EBRD may direct, on demand, all fees, costs
and
expenses (including, legal fees and expenses) incurred by EBRD:
(1) in
the determination of whether there has occurred a Default;
(2) in
respect of the preservation or enforcement of any of its rights under any New
Financing Agreement and the collection of any amount owing to EBRD;
and
(3) in
connection with the assessment, preparation, review, negotiation, execution
and,
where appropriate, registration and notarisation of any amendment to or waiver
of any New Financing Agreement or any other document related
thereto.
37
|
Section
5.14.
|
Reports;
Furnishing of Information
|
(a)
(1) The
provisions of Section 4.12 (excluding Section 4.12(3) and the final paragraph
of
Section 4.12) of the 2005 Indenture (together with the definitions set out
in
the 2005 Indenture insofar as they relate thereto) are hereby incorporated
herein mutatis mutandis as if set out herein in full, provided that the
requirement to provide to or make information available to the 2005 Trustee
or
the holders of the 2005 Notes shall not be incorporated mutatis mutandis
herein.
(2)
Insofar
as the annual and quarterly information required under Section 5.14(a)(1) is
not
filed with the Commission and/or is not publicly available by reference to
the
internet website of the Borrower within the time required thereunder (by
reference to Section 4.12 of the 2005 Indenture) the Borrower shall, promptly
upon becoming aware thereof, provide paper copies thereof to EBRD in the form
required under Regulation S-X.
(b) Within
45 days after the end of each quarter of each Financial Year, the Borrower
shall
notify EBRD of the Leverage Ratio for the Borrower and its Restricted
Subsidiaries, such Leverage Ratio to be calculated as at the last day of the
quarter being reported on.
(c) Within
60 days after the end of each Financial Year, the Borrower shall furnish to
EBRD
a statement of the principal repayments scheduled to be made in each succeeding
Financial Year up to and including the Financial Year ending on 31 December
2011
(and any subsequent Financial Year to the extent that any amounts may remain
outstanding hereunder by the Borrower in such Financial Year) in respect of
all
of its Indebtedness other than amounts required for a mandatory reduction
referred to in the exception to Section 6.13.
(d) As
soon as available but, in any event, within 60 days after the end of each
Financial Year, the Borrower shall furnish to EBRD information on the identity
and nationality of the contractor and the value of the contract in respect
of
any contract awarded by the Borrower or any Subsidiary relating to the Project
(A) which is in respect of construction or works and has a value in excess
of
€5,000,000 (or the equivalent thereof in other currencies at then
current rates of exchange), or (B) which is in respect of the
purchase of goods or the provision of consultancy services with a value in
excess of €1,000,000 (or the equivalent thereof in other currencies at then
current rates of exchange).
(f) The
Borrower shall promptly notify EBRD of any amendments and/or supplements to
the
2005 Indenture and shall provide certified copies to EBRD promptly upon
execution thereof.
38
(1) any
proposed material change in the nature or scope of the Project or the business
or operations of the Borrower or any Restricted Subsidiary; and
(2) any
event or condition (including, any pending or threatened litigation, arbitration
or administrative proceeding and any damage to or destruction of Project
facilities) which is reasonably likely to have a Material Adverse
Effect.
(h) Immediately
upon the occurrence of any Default, the Borrower shall give EBRD notice thereof
specifying the nature of such Default and any steps the Borrower is taking
to
remedy the same.
|
Section
5.15.
|
Original
Loan Agreement
|
For
the
purposes of Sections 5.03, 5.05 and 5.14(a), (b), (c), (d), (e), (f) and (i),
any notice, document or information provided by the Borrower to EBRD as required
under those Sections and which is required to be provided under identical
provisions of the Original Loan Agreement shall be deemed to be satisfied
hereunder by the Borrower providing the relevant notice, document or information
for the purposes of, and in accordance with, the Original Loan
Agreement.
39
Unless
EBRD otherwise agrees in
writing:
|
Limitation
on Indebtedness
|
The
provisions of Section 4.3 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full, provided that, for the purposes of
the definition of “Refinancing Indebtedness”, if the Indebtedness being
refinanced is Indebtedness of the Borrower or a Subsidiary Guarantor then such
Refinancing Indebtedness should also be Indebtedness of the Borrower or
Subsidiary Guarantor (as the case may be) that Incurred the initial
Indebtedness.
|
Section
6.02.
|
Limitation
on Restricted Payments;
Investments
|
The
provisions of Section 4.4 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full, and references to “Default” and
“Event of Default” shall be defined in accordance with Section 1.01
hereof.
|
Section
6.03.
|
Limitation
on Liens
|
The
provisions of Section 4.6 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full.
|
Section
6.04.
|
Waiver
of Stay; Extension or Usury
Laws
|
The
provisions of Section 4.7 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full.
|
Section
6.05.
|
Limitation
on Restrictions on Distributions from Restricted
Subsidiaries
|
The
provisions of Section 4.8 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full.
|
Section
6.06.
|
Limitation
on Sales of Assets and Subsidiary
Stock
|
(a) The
provisions of Section 4.9 of the 2005 Indenture (together with the definitions
set out in the 2005 Indenture insofar as they relate thereto) are hereby
incorporated herein mutatis mutandis as if set out herein in full, save
that the provisions of Section 6.06(b) and (c) below shall apply hereunder
in
connection with any Asset Disposition Offer under, and shall supplement, Section
4.9 of the 2005 Indenture.
40
(b) The
parties hereto agree and acknowledge that, for the purposes of Section 4.9
of
the 2005 Indenture, the Indebtedness arising under this Agreement constitutes
Pari Passu Indebtedness and/or Pari Passu Notes, as the context
requires. For the avoidance of doubt, in the event that an Asset
Disposition Offer is made under Section 4.9 of the 2005 Indenture, the Borrower
will be required to make such Asset Disposition Offer to EBRD in accordance
with
the procedures and under the terms and conditions outlined in Section 4.9 of
the
2005 Indenture. Amounts of the Loan prepaid by the Borrower under
this Section 6.06(b) may not be reborrowed and the Commitment shall reduce
accordingly.
(c) For
the purposes of this Section 6.06, capitalised terms not otherwise defined
in
this Agreement shall have the meanings ascribed to them in the 2005
Indenture.
|
Section
6.07.
|
Limitation
on Affiliate Transactions; Arm’s Length
Transactions
|
The
provisions of Section 4.10 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full.
|
Section
6.08.
|
Limitation
on Lines of Business
|
The
provisions of Section 4.13 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full.
|
Section
6.09.
|
Merger,
Amalgamation and
Consolidation
|
The
provisions of Section 4.18 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full, and all obligations therein by the
Issuer or a Subsidiary Guarantor (or a Successor Company or Successor Guarantor)
to the 2005 Trustee in respect of the 2005 Notes, the 2005 Indenture or the
Subsidiary Guarantees (as defined thereunder) shall be read and construed as
the
Borrower’s or Subsidiary Guarantor’s (or a Successor Company’s or Successor
Guarantor’s) obligations to EBRD in respect of the Loan, this Agreement or the
New Subsidiary Guarantees hereunder, and all references to “Default” and “Event
of Default” shall be defined in accordance with Section 1.01
hereof.
|
Section
6.10.
|
Limitation
on Sale of Stock of Restricted
Subsidiaries
|
The
provisions of Section 4.20 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full.
41
|
Section
6.11.
|
Limitation
on Guarantees of the Borrower and Subsidiary Guarantor
Indebtedness
|
The
provisions of Section 4.21 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full, and the reference therein to the
“Notes” shall be read and construed as a reference to the “Loan”
hereunder.
|
Section
6.12.
|
Impairment
of Security Interest
|
The
provisions of Section 4.22 of the
2005 Indenture (together with the definitions set out in the 2005 Indenture
insofar as they relate thereto) are hereby incorporated herein mutatis
mutandis as if set out herein in full, and references therein to the
“Collateral” shall be read and construed as references to the “Security”
hereunder and the reference therein to the “Security Documents” shall be read
and construed as a reference to the New Security Documents
hereunder.
|
Section
6.13.
|
Repayment
of Indebtedness
|
The
Borrower shall not enter into or
permit to subsist any financial debt of the Borrower to any third party and/or
any amounts payable by the Borrower on capital leases or similar financial
instruments in respect of which, in any such case, scheduled principal
repayments exceed US$20,000,000 in any calendar year while any amounts are
outstanding or may become due by the Borrower hereunder (except for any amounts
required for the mandatory reduction of the revolving facility dated 29 July
2005 between ING Bank N.V. and Produkcija Plus storitveno podjetje d.o.o. and
the Czech Loans).
|
Section
6.14.
|
Changes
to Project and Charter
|
(a) The
Borrower shall not change, or permit changes to be made to, the nature or scope
of the Project in any material way.
(b) The
Borrower shall not make changes to its Charter in any manner which would be
inconsistent with the provisions of any New Financing Agreement.
42
|
Section
7.01.
|
Events
of Default
|
Each
of the following events and
occurrences shall constitute an Event of Default under this
Agreement:
(a) Payments. The
Borrower or any Subsidiary Guarantor fails to pay when due any amount payable
pursuant to any Original Financing Agreement or any New Financing Agreement
at
the place and in the currency in which it is expressed to be
payable.
(b) Covenants. The
Borrower or any Subsidiary Guarantor fails to perform in a timely manner any
of
its obligations under any Original Financing Agreement or any New Financing
Agreement or any other agreement between the Borrower or such Subsidiary
Guarantor and EBRD, the failure to perform such obligation is not referred
to
elsewhere in this Section 7.01 and, if capable of remedy, such failure to
perform has continued for a period of 30 days after notice thereof has been
given to the Borrower by EBRD.
(c) Framework
Agreement. The Borrower fails to perform in a timely manner
any of its obligations under the Framework Agreement, the failure to perform
such obligation is not referred to elsewhere in this Section 7.01 and, if
capable of remedy, such failure to perform has continued for a period of 30
days
after notice thereof has been given to the Borrower by EBRD.
(d) Czech
Licence. (i) The TV Nova Licence is (whether in
whole or in part) terminated, suspended, withdrawn, revoked, materially modified
or varied (in such a way that such modification or variation is reasonable
likely to have a Material Adverse Effect) or cancelled (including, without
limiting the generality of the foregoing, declared illegal or unenforceable
or
nullified) or otherwise expires and is not renewed prior to its expiration
or
otherwise ceases to be in full force and effect; or (ii) any event occurs which
is reasonably likely to give rise to such termination, suspension, withdrawal,
revocation, cancellation, expiry or cessation in circumstances where the
Borrower is unable to demonstrate to the reasonable satisfaction of the EBRD
within 30 (thirty) days of such event occurring that such termination,
suspension, withdrawal, revocation, cancellation, expiry or cessation will
not
occur or that it is taking steps agreed with EBRD to mitigate the risk of such
termination, suspension, withdrawal, revocation, cancellation, expiry or
cessation.
(e) Other
Licences. (i) Any of the Licences other than the
TV Nova Licence is (whether in whole or in part) terminated, suspended,
withdrawn, revoked, materially modified or varied or cancelled
(including, without limiting the generality of the foregoing, declared illegal
or unenforceable or nullified) or otherwise expires and is not renewed prior
to
its expiration or otherwise ceases to be in full force and effect (in such
a way
as to be reasonably likely to have a Material Adverse Effect); or (ii) any
event
occurs which is reasonably likely to give rise to such termination, suspension,
withdrawal, revocation, cancellation, expiry or cessation in circumstances
where
the Borrower is unable to demonstrate to the reasonable satisfaction of the
EBRD
within 30 (thirty) days of such event occurring that such termination,
suspension, withdrawal, revocation, cancellation, expiry or cessation will
not
occur or is not reasonably likely to have a Material Adverse Effect, or that
it
is taking steps agreed with EBRD to mitigate the risk of such termination,
suspension, withdrawal, revocation, cancellation, expiry or
cessation.
43
(f) Representations. Any
representation or warranty made or confirmed by the Borrower or any Subsidiary
Guarantor in any Original Financing Agreement or any New Financing Agreement
was
false or misleading in any material respect when made or repeated.
(g) Nationalisation. Any
Governmental Authority condemns, nationalises, seizes or otherwise expropriates
all or any substantial part of the property or other assets of the Borrower,
any
Subsidiary Guarantor or any Significant Subsidiary or of its share capital,
or
assumes custody or control of such property or other assets or of the business
or operations of the Borrower, any Subsidiary Guarantor or any Significant
Subsidiary or of its share capital, or acquires majority ownership of the
Borrower, any Subsidiary Guarantor or any Significant Subsidiary or takes any
action for the dissolution or disestablishment of the Borrower, any Subsidiary
Guarantor or any Significant Subsidiary or any action that would prevent the
Borrower, any Subsidiary Guarantor or any Significant Subsidiary or its officers
from carrying on its business or operations or a substantial part
thereof.
(h) Bankruptcy. A
decree or order by a court is entered adjudging the Borrower, any Subsidiary
Guarantor or any Significant Subsidiary bankrupt or insolvent or ordering the
winding up or liquidation of its affairs; or a petition is filed seeking
reorganisation, administration, arrangement, adjustment, composition or
liquidation of or in respect of the Borrower, any Subsidiary Guarantor or any
Significant Subsidiary under any applicable law; or a receiver, administrator,
liquidator, assignee, trustee, sequestrator, secured creditor or other similar
official is appointed over or in respect of the Borrower, any Subsidiary
Guarantor or any Significant Subsidiary or any substantial part of its property
or assets; or the Borrower, any Subsidiary Guarantor or any Significant
Subsidiary institutes proceedings to be adjudicated bankrupt or insolvent,
or
consents to the institution of bankruptcy or insolvency proceedings against
it,
or files a petition or answer or consent seeking reorganisation, administration,
relief or liquidation under any applicable law, or consents to the filing of
any
such petition or to the appointment of a receiver, administrator, liquidator,
assignee, trustee, sequestrator, secured creditor or other similar official
of
the Borrower, any Subsidiary Guarantor or any Significant Subsidiary or of
any
substantial part of its property, or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts generally as
they
become due; or any other event occurs which under any applicable law would
have
an effect analogous to any of the events listed in this Section.
(i) Indebtedness. Any
Indebtedness of the Borrower, any Subsidiary Guarantor or any Significant
Subsidiary (other than the Loan or Indebtedness owed to the Borrower, any
Subsidiary Guarantor or any Restricted Subsidiary) in excess of US$25,000,000
(or the equivalent thereof in other currencies), is not paid when due nor within
any applicable period of grace; or a default of any nature occurs under any
agreement pursuant to which there is outstanding any such Indebtedness and
such
default continues beyond any applicable period of grace; or any such
Indebtedness becomes prematurely due and payable or is placed on demand as
a
result of a default (however described under the terms of such
Indebtedness).
44
(j) Material
Adverse Effect. Any circumstance or event occurs which, in
the reasonable opinion of EBRD, is likely to have a Material Adverse
Effect.
|
Section
7.02.
|
Consequences
of Default
|
If
an Event of Default occurs and is continuing, then EBRD may at its option,
by
notice to the Borrower, declare all or any portion of the principal of, and
accrued interest on, the Loan (together with any other amounts accrued or
payable under this Agreement) to be, and the same shall thereupon become
(anything in this Agreement to the contrary notwithstanding),
either:
(1) due
and payable on demand; or
(2) immediately
due and payable without any further notice and without any presentment, demand
or protest of any kind, all of which are hereby expressly waived by the
Borrower.
|
Section
8.01.
|
Term
of Agreement
|
This
Agreement shall continue in force
until the date that the obligation of EBRD to make Disbursements hereunder
has
terminated in accordance with the terms hereof or, if later, until all moneys
payable hereunder have been fully paid in accordance with the provisions hereof;
provided that the indemnities and warranties of the Borrower and the provisions
of Section 8.03, Section 8.08, Section 8.09 and Section 8.10 shall survive
repayment of the Loan and termination of this Agreement.
|
Section
8.02.
|
Entire
Agreement; Amendment and
Waiver
|
(a) This
Agreement and the documents referred to herein constitute the entire obligation
of the parties hereto with respect to the subject matter hereof and shall
supersede any prior expressions of intent or understandings with respect to
this
transaction. Any amendment to, waiver by EBRD of any of the terms or
conditions of, or consent given by EBRD under, this Agreement (including, this
Section 8.02) shall be in writing, signed by EBRD and, in the case of an
amendment, by the Borrower. The parties to this Agreement may by
agreement rescind or vary this Agreement without the consent of any person
that
is not a party to this Agreement. In the event that EBRD waives a
condition to any Disbursement, the Borrower shall, by receiving the proceeds
of
such Disbursement, be deemed to have agreed to all of the terms and conditions
of such waiver.
45
(b) In
the event that the Borrower repays or refinances the 2005 Notes prior to their
scheduled maturity date, in light of the Borrower’s policy to align the
covenants of its financing facilities to the extent commercially practicable,
it
is acknowledged that the Borrower may request EBRD to consider reviewing certain
covenants in Articles V and VI of this Agreement which are aligned to the 2005
Indenture with a view, so far as is appropriate in EBRD’s absolute discretion
and in the light of any circumstances at the time, to aligning such covenants
to
those of the 2007 Indenture. EBRD agrees to consider any such request
on the basis that this Section 8.02(b) does not constitute any commitment on
the
part of EBRD to amend any terms of this Agreement.
|
Section
8.03.
|
Notices
|
Any
notice, application or other
communication to be given or made under this Agreement to EBRD or to the
Borrower shall be in writing. Except as otherwise provided in this
Agreement, such notice, application or other communication shall be deemed
to
have been duly given or made when it is delivered by hand, courier or facsimile
transmission to the party to which it is required or permitted to be given
or
made at such party's address specified below or at such other address as such
party designates by notice to the party giving or making such notice,
application or other communication.
For the Borrower:
c/o
CME
Development Corp.
Aldwych
House
▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
Attention:
|
General
Counsel
|
|
|
Fax:
|
▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
|
For EBRD:
European Bank for Reconstruction and Development
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Attention:
|
Operation
Administration Unit
|
|
|
Fax:
|
▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
|
46
|
Section
8.04.
|
English
Language
|
All
documents to be furnished or
communications to be given or made under this Agreement shall be in the English
language or, if in another language, shall be accompanied by a translation
into
English certified by the party providing such document, which translation shall
be the governing version between the Borrower and EBRD.
|
Section
8.05.
|
Financial
Calculations
|
All
financial calculations to be made
under, or for the purposes of, this Agreement shall be made in accordance with
Generally Accepted Accounting Principles and, except as otherwise required
to
conform to the provisions of this Agreement, shall be made using the then most
recently issued quarterly Financial Statements which the Borrower is required
to
furnish to EBRD from time to time under Section 5.14(a); provided, however,
that:
(1) if
the relevant quarterly Financial Statements should be in respect of the last
quarter of a Financial Year then such calculations shall instead be made from
the audited Financial Statements for the relevant Financial Year;
and
(2) if
there should occur any material adverse change in the financial condition of
the
Borrower after the end of the period covered by the relevant Financial
Statements, then such material adverse change shall also be taken into account
in calculating the relevant figures.
|
Section
8.06.
|
Rights,
Remedies and Waivers
|
(a) The
rights and remedies of EBRD in relation to any misrepresentations or breach
of
warranty on the part of the Borrower shall not be prejudiced by any
investigation by or on behalf of EBRD into the affairs of the Borrower, by
the
execution or the performance of this Agreement or by any other act or thing
which may be done by or on behalf of EBRD in connection with this Agreement
and
which might, apart from this Section, prejudice such rights or
remedies.
(b) No
course of dealing or waiver by EBRD in connection with any condition of
Disbursement under this Agreement shall impair any right, power or remedy of
EBRD with respect to any other condition of Disbursement or be construed to
be a
waiver thereof.
(c) No
action of EBRD in respect of any Disbursement shall affect or impair any right,
power or remedy of EBRD in respect of any other Disbursement. Without
limiting the foregoing, the right of EBRD to require compliance with any
condition under this Agreement which may be waived by EBRD in respect of any
Disbursement is, unless otherwise notified to the Borrower by EBRD, expressly
preserved for the purposes of any subsequent ▇▇▇▇▇▇▇▇▇▇▇▇.
▇▇
(▇) No
course of dealing and no delay in exercising, or omission to exercise, any
right, power or remedy accruing to EBRD upon any default under this Agreement
or
any other agreement shall impair any such right, power or remedy or be construed
to be a waiver thereof or an acquiescence therein. No single or
partial exercise of any such right, power or remedy shall preclude any other
or
further exercise thereof or the exercise of any other right, power or
remedy. No action of EBRD in respect of any such default, or
acquiescence by it therein, shall affect or impair any right, power or remedy
of
EBRD in respect of any other default.
(e) The
rights and remedies provided in this Agreement and the other New Financing
Agreements are cumulative and not exclusive of any other rights or remedies,
whether provided by applicable law or otherwise.
|
Section
8.07.
|
Indemnification
|
(a) Subject
to the provisions of this Agreement, the Borrower assumes full liability for,
and agrees to and shall indemnify and hold harmless EBRD and its officers,
directors, employees, agents and servants against and from, any and all
liabilities, obligations, losses, damages (compensatory, punitive or otherwise),
penalties, claims, actions, Taxes, suits, costs and expenses (including,
reasonable legal counsel's fees and expenses and costs of investigation) of
whatsoever kind and nature, including, without prejudice to the generality
of
the foregoing, those arising in contract or tort
(including, negligence) or by strict liability or otherwise, which
are imposed on, incurred by or asserted against EBRD or any of its officers,
directors, employees, agents or servants (whether or not also indemnified by
any
other person under any other document) and which in any way relate to or arise
out of, whether directly or indirectly:
(1) any
of the transactions contemplated by any New Financing Agreement or the
execution, delivery or performance thereof;
(2) the
operation or maintenance of the facilities of any member of the Group or the
ownership, control or possession thereof by any member of the Group;
or
(3) the
exercise by EBRD of any of its rights and remedies under any of the New
Financing Agreements;
provided
that EBRD shall not have any right to be indemnified hereunder for its own
gross
negligence or wilful misconduct.
(b) The
Borrower acknowledges that EBRD is entering into this Agreement, and has acted,
solely as a lender, and not as an advisor, to the Borrower. The
Borrower represents and warrants that, in entering into the New Financing
Agreements, it has engaged, and relied upon advice given to it by, its own
legal, financial and other professional advisors and it has not relied on and
will not hereafter rely on any advice given to it by EBRD.
48
|
Section
8.08.
|
Governing
Law
|
This
Agreement shall be governed by and
construed in accordance with English law.
|
Section
8.09.
|
Arbitration
and Jurisdiction
|
(a) Any
dispute, controversy or claim arising out of or relating to this Agreement,
or
the breach, termination or invalidity hereof, shall be settled by arbitration
in
accordance with the UNCITRAL Arbitration Rules as at present in
force. There shall be one arbitrator and the appointing authority
shall be LCIA. The seat and place of arbitration shall be London,
England and the English language shall be used throughout the arbitral
proceedings. The parties hereby waive any rights under the
Arbitration ▇▇▇ ▇▇▇▇ or otherwise to appeal any arbitration award to, or to
seek
determination of a preliminary point of law by, the courts of
England. The arbitral tribunal shall not be authorised to take or
provide, and the Borrower agrees that it shall not seek from any judicial
authority, any interim measures of protection or pre-award relief against EBRD,
any provisions of the UNCITRAL Arbitration Rules notwithstanding. The
arbitral tribunal shall have authority to consider and include in any
proceeding, decision or award any further dispute properly brought before it
by
EBRD (but no other party) insofar as such dispute arises out of any New
Financing Agreement, but, subject to the foregoing, no other parties or other
disputes shall be included in, or consolidated with, the arbitral
proceedings. In any arbitral proceeding, the certificate of EBRD as
to any amount due to EBRD under any New Financing Agreement shall be prima
facie evidence of such amount unless the findings in such certificate
involve manifest error.
(b) Notwithstanding
Section 8.09(a), this Agreement and the other New Financing Agreements, and
any
rights of EBRD arising out of or relating to this Agreement or any other New
Financing Agreement, may, at the option of EBRD, be enforced by EBRD in the
courts of Bermuda or England or in any other courts having
jurisdiction. For the benefit of EBRD, the Borrower hereby
irrevocably submits to the non-exclusive jurisdiction of the courts of England
with respect to any dispute, controversy or claim arising out of or relating
to
this Agreement or any other New Financing Agreement, or the breach, termination
or invalidity hereof or thereof. The Borrower hereby irrevocably
designates, appoints and empowers CME Development Corp. at its registered office
(being, on the date hereof, at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇) to act as its authorised agent to receive service of process and any
other legal summons in England for purposes of any legal action or proceeding
brought by EBRD in respect of any New Financing Agreement. The
Borrower hereby irrevocably consents to the service of process or any other
legal summons out of such courts by mailing copies thereof by registered airmail
postage prepaid to its address specified herein. The Borrower
covenants and agrees that, so long as it has any obligations under this
Agreement, it shall maintain a duly appointed agent to receive service of
process and any other legal summons in England for purposes of any legal action
or proceeding brought by EBRD in respect of any New Financing Agreement and
shall keep EBRD advised of the identity and location of such
agent. Nothing herein shall affect the right of EBRD to commence
legal actions or proceedings against the Borrower in any manner authorised
by
the laws of any relevant jurisdiction. The commencement by EBRD of
legal actions or proceedings in one or more jurisdictions shall not preclude
EBRD from commencing legal actions or proceedings in any other jurisdiction,
whether concurrently or not. The Borrower irrevocably waives any
objection it may now or hereafter have on any grounds whatsoever to the laying
of venue of any legal action or proceeding and any claim it may now or hereafter
have that any such legal action or proceeding has been brought in an
inconvenient forum.
49
(c) The
Borrower agrees to the provisions of this Section 8.09 solely because the
counterparty to this Agreement as at the date hereof is EBRD.
|
Section
8.10.
|
Privileges
and Immunities of EBRD
|
Nothing
in this Agreement shall be
construed as a waiver, renunciation or other modification of any immunities,
privileges or exemptions of EBRD accorded under the Agreement Establishing the
European Bank for Reconstruction and Development, international convention
or
any applicable law.
|
Section
8.11.
|
Waiver
of Sovereign Immunity
|
The
Borrower represents and warrants
that this Agreement and the incurring by the Borrower of the Loan are commercial
rather than public or governmental acts and that the Borrower is not entitled
to
claim immunity from legal proceedings with respect to itself or any of its
assets on the grounds of sovereignty or otherwise under any law or in any
jurisdiction where an action may be brought for the enforcement of any of the
obligations arising under or relating to this Agreement. To the
extent that the Borrower or any of its assets has or hereafter may acquire
any
right to immunity from set-off, legal proceedings, attachment prior to
judgement, other attachment or execution of judgement on the grounds of
sovereignty or otherwise, the Borrower hereby irrevocably waives such rights
to
immunity in respect of its obligations arising under or relating to this
Agreement.
|
Section
8.12.
|
Successors
and Assigns; Third Party
Rights
|
(a) This
Agreement shall bind and inure to the benefit of the respective successors
and
assigns of the parties hereto, except that the Borrower may not assign or
otherwise transfer all or any part of its rights or obligations under this
Agreement without the prior written consent of EBRD.
(b) EBRD
may sell, transfer, assign, novate or otherwise dispose of all or part of its
rights or obligations under this Agreement and the other New Financing
Agreements (including, by granting of Participations or otherwise).
(c) Except
as provided in Section 8.12(a) or 8.12(b), none of the terms of this Agreement
are intended to be enforceable by any third party.
50
|
Section
8.13.
|
Disclosure
|
EBRD
may disclose such documents,
information and records regarding the Borrower and this transaction (including,
copies of any New Financing Agreements and Operational Documents) as EBRD deems
appropriate in connection with any dispute involving the Borrower or any other
party to a New Financing Agreement, for the purpose of preserving or enforcing
any of EBRD's rights under any New Financing Agreement or collecting any amount
owing to EBRD or in connection with any Participation or any other proposed
sale, transfer, assignment, novation or other disposal contemplated by Section
8.12; provided, however, that (save for such disclosure made at any time when
an
Event of Default has occurred and is continuing) the recipient to whom any
such
information is disclosed provides a confidentiality undertaking in respect
thereof.
|
Section
8.14.
|
Counterparts
|
This
Agreement may be executed in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
51
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Chief
Financial Officer
|
||
52
EUROPEAN
BANK
FOR
RECONSTRUCTION AND DEVELOPMENT
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
||
|
Title:
Senior Banker
|
53
SCHEDULE
1 - COMMITMENT
|
Period
|
Commitment
|
|
Facility
Agreement date to 10 May 2009
|
€50,000,000
|
|
11
May 2009 to 10 November 2009
|
€42,500,000
|
|
11
November 2009 to 10 May 2010
|
€35,000,000
|
|
11
May 2010 to 10 November 2010
|
€27,500,000
|
|
11
November 2010 to 10 May 2011
|
€20,000,000
|
1
[To
Be
Typed on Letterhead of the Borrower]
[Date]
European
Bank for Reconstruction and Development
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Attention:
|
Operation
Administration Unit
|
|
Subject:
|
Operation
No. 38237
|
Disbursement
Application No. _____
Dear
Sir/Madam:
1. Please
refer to the loan agreement dated [__________] (the “Loan Agreement”) between
Central European Media Enterprises Ltd. (the “Borrower”) and European Bank for
Reconstruction and Development (“EBRD”).
2. Expressions
defined in the Loan Agreement shall bear the same meanings herein.
3. We
hereby request the following [Renewal] Disbursement in accordance with the
provisions of the Loan Agreement:
|
Currency
required:
|
EURO
|
|
|
Amount
(in figures and words):
|
||
|
Value
Date:
|
[As
soon as possible, on a date selected by EBRD in its discretion, but
not
later than]
|
|
|
Interest
Period:
|
||
|
Payment
Instructions (Borrower's Banking Details):
|
||
|
Borrower's
Account Name:
|
||
|
Borrower's
Account Number:
|
||
|
Borrower's
Bank Name:
|
||
|
Borrower's
Bank Address:
|
||
|
Borrower's
Bank Correspondent Details:
|
||
|
Correspondent's
Name:
|
||
|
Correspondent's
Address:
|
||
|
Borrower's
Bank's Account Name:
|
||
|
Borrower's
Bank's Account Number:
|
||
|
Reference:
|
||
A-1
4. For
the purposes of Section 4.02 of the Loan Agreement, we hereby represent and
warrant that:
(a) all
agreements, documents and instruments delivered to EBRD pursuant to Section
4.01
[(other than Section 4.01(d))]* of the Loan Agreement are in full
force and effect and unconditional (except for the Loan Agreement having become
unconditional, if that is a condition of any such agreement);
(b) subject
to Section 2.04(b) of the Loan Agreement, the representations and warranties
made by the Borrower and the Subsidiary Guarantors in the New Financing
Agreements are true on and as of the date hereof with the same effect as though
such representations and warranties had been made on and as of the date
hereof;
(c) no
Default (or, in the case of a Renewal Disbursement, no Event of Default) has
occurred and is continuing;
(d) the
Borrower will not, as a result of such Disbursement, be in violation of its
Charter, any provision contained in any agreement or instrument to which the
Borrower is a party (including the Loan Agreement) or by which the Borrower
is
bound or any law applicable to the Borrower;
(e) nothing
has occurred which is reasonably likely to have a Material Adverse Effect;
and
(f) the
proceeds of such Disbursement are needed by the Borrower for the purposes of
the
Project.
A-2
5. The
representations and warranties made in paragraph 4 above will continue to be
true on and as of the date of such Disbursement with the same effect as though
such representations and warranties had been made on and as of the date of
such
Disbursement. If any such representation or warranty is no longer
true on or prior to or as of the date of such Disbursement, we shall immediately
notify EBRD and shall, upon demand by EBRD, repay any amount which has been
or
is disbursed by EBRD in respect of such Disbursement.
Yours
faithfully,
|
By:
|
||
|
Authorised
Representative
|
A-3
EXHIBIT
B - FORM OF CERTIFICATE OF INCUMBENCY AND AUTHORITY
[To
Be
Typed on Letterhead of the Borrower]
[Date]
European
Bank for Reconstruction and Development
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Attention:
|
Operation
Administration Unit
|
|
Subject:
|
Operation
No. 38237
|
Certificate
of Incumbency and Authority
Dear
Sir/Madam:
With
reference to the loan agreement dated [__________] (the “Loan Agreement”)
between Central European Media Enterprises Ltd. (the “Borrower”) and European
Bank for Reconstruction and Development (“EBRD”) and the other New Financing
Agreements (as defined therein) I, the undersigned Secretary of the Borrower
duly authorised by its Board of Directors, hereby certify that the following
are
the names, offices and true specimen signatures of the persons, any one of
whom
is and will continue to be (until EBRD has received actual written notice from
the Borrower that they or any of them no longer continue to be) authorised,
on
behalf of the Borrower, individually:
|
(1)
|
to
sign the Loan Agreement and any other agreements to which EBRD and
the
Borrower may be party in connection
therewith;
|
|
(2)
|
to
sign any Disbursement applications, certifications, letters or other
documents to be provided under the Loan Agreement and under any other
agreements to which EBRD and the Borrower may be party in connection
therewith; and
|
|
(3)
|
to
take any other action required or permitted to be taken by the Borrower
under the Loan Agreement or any other agreement to which EBRD and
the
Borrower may be party in connection
therewith:
|
B-1
|
NAME
|
OFFICE
|
SPECIMEN
SIGNATURE
|
||
IN
WITNESS WHEREOF, I have signed my name on the date first above
written.
Yours
faithfully,
|
By:
|
|||
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇
|
||
|
Title:
|
Secretary
|
||
B-2
[To
Be
Typed on Letterhead of the Borrower]
[Date]
[Name
of Auditors]
[Address]
Dear
Sir/Madam:
We
hereby
authorise and request you to give to European Bank for Reconstruction and
Development (“EBRD”) all such information as it may reasonably request with
regard to the Financial Statements, both audited and unaudited, which we have
agreed to furnish to EBRD under the terms of the loan agreement dated
[__________] (the “Loan Agreement”) between ourselves and EBRD. For
your information, we enclose a copy of the Loan Agreement.
We
authorise you, if so requested by EBRD, to send our audited accounts to EBRD
to
enable us to satisfy the reporting requirements set forth in Section 5.14 of
the
Loan Agreement. When submitting such audited accounts to EBRD, you
are also requested to send, at the same time, a copy of your full report on
such
accounts.
For
our
records, please ensure that you send to us a copy of every letter which you
receive from EBRD immediately upon receipt and a copy of each reply made by
you
immediately upon the issue thereof.
Yours
faithfully,
|
By:
|
||
|
Authorised
Representative
|
Enclosure: Loan
Agreement
|
cc:
|
European
Bank for Reconstruction and
Development
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Attention:
|
Operation
Administration Unit
|
|
|
Subject:
|
Operation
No. 38237
|
C-1
EXHIBIT
D – LIST OF SUBSIDIARIES
OF
THE BORROWER
|
Company
Name
|
Voting
Interest
|
Jurisdiction
of Organization
|
||
|
CME
Media Investments s.r.o.
|
100%
|
Czech
Republic
|
||
|
Vilja
a.s.
|
100%
|
Czech
Republic
|
||
|
CET
21 spol. s.r.o.
|
100%
|
Czech
Republic
|
||
|
▇▇▇▇▇
a.s.
|
100%
|
Czech
Republic
|
||
|
Media
Capitol, a.s.
|
100%
|
Czech
Republic
|
||
|
NOVA
– V.I.P., a.s.
|
100%
|
Czech
Republic*
|
||
|
HARTIC,
a.s.
|
100%
|
Czech
Republic
|
||
|
Galaxie
sport s.r.o.
|
100%
|
Czech
Republic
|
||
|
CME
Slovak Holdings B.V.
|
100%
|
Netherlands
|
||
|
Media
Pro International S.A.
|
95%
|
Romania
|
||
|
Media
Vision S.R.L.
|
95%
|
Romania
|
||
|
MPI
Romania B.V
|
95%
|
Netherlands
|
||
|
Pro
TV S.A.
|
95%
|
Romania
|
||
|
Sport
Radio TV Media SRL
|
95%
|
Romania
|
||
|
Media
Pro Management S.A.
|
8.7%
|
Romania
|
||
|
Mediapro
B.V.
|
10%
|
Netherlands
|
||
|
International
Media Services Ltd.
|
60%
|
Bermuda
|
||
|
Innova
Film GmbH
|
60%
|
Germany
|
||
|
Foreign
Enterprise “Inter-Media”
|
60%
|
Ukraine
|
||
|
TV
Media Planet Ltd.
|
60%
|
Cyprus
|
||
|
Broadcasting
Company “Studio 1+1 LLC”
|
18%
|
Ukraine
|
||
|
Ukrainian
Media Services LLC
|
99%
|
Ukraine
|
||
|
Ukrpromtorg-2003
LLC
|
65.5%
|
Ukraine
|
||
|
Gravis
LLC
|
60.4%
|
Ukraine
|
D-1
|
Delta
JSC
|
60.4%
|
Ukraine
|
||
|
Nart
LLC
|
65.5%
|
Ukraine
|
||
|
TV
Stimul LLC
|
49.1%
|
Ukraine
|
||
|
TOR
LLC
|
60.4%
|
Ukraine
|
||
|
ZHYSA
LLC
|
60.4%
|
Ukraine
|
||
|
A.R.J.
a.s.
|
100%
|
Slovak
Republic
|
||
|
Markiza-Slovakia
spol. s.r.o.
|
100%
|
Slovak
Republic
|
||
|
Gamatex
spol. s.r.o.
|
80%
|
Slovak
Republic*
|
||
|
▇▇▇▇
a.s.
|
80%
|
Slovak
Republic*
|
||
|
MMTV
1 d.o.o.
|
100%
|
Slovenia
|
||
|
Produkcija
Plus d.o.o.
|
100%
|
Slovenia
|
||
|
POP
TV d.o.o.
|
100%
|
Slovenia
|
||
|
Kanal
A d.o.o.
|
100%
|
Slovenia
|
||
|
MTC
Holding d.o.o.
|
24%
|
Slovenia*
|
||
|
Euro
3 TV d.o.o.
|
42%
|
Slovenia
|
||
|
Nova
TV d.d.
|
100%
|
Croatia
|
||
|
Operativna
Kompanija d.o.o.
|
100%
|
Croatia
|
||
|
Media
House d.o.o.
|
100%
|
Croatia
|
||
|
Internet
Dnevnik d.o.o.
|
76%
|
Croatia
|
||
|
CME
Media Enterprises B.V.
|
100%
|
Netherlands
|
||
|
CME
Czech Republic II B.V.
|
100%
|
Netherlands
|
||
|
CME
Romania B.V.
|
100%
|
Netherlands
|
||
|
CME
Ukraine Holding GmbH
|
100%
|
Austria
|
||
|
CME
Cyprus Holding Ltd.
|
100%
|
Cyprus
|
||
|
CME
Development Corporation
|
100%
|
USA
(Delaware)
|
▇-▇
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇.
|
▇▇▇%
|
▇▇▇▇▇▇▇▇▇▇▇
Antilles
|
||
|
Central
European Media Enterprises II B.V.
|
100%
|
Netherlands
Antilles
|
||
|
CME
SR d.o.o.
|
100%
|
Serbia
|
*
In
liquidation
D-3
EXHIBIT
E – LICENCES
Romania
(Bucharest Licences)
Pro
TV
SA
|
|
·
|
Acasa
TV (satellite)
|
|
|
·
|
Pro
TV (terrestrial)
|
|
|
·
|
Pro
TV (satellite)
|
|
|
·
|
Pro
TV (digital)
|
|
|
·
|
Pro
Cinema (satellite)
|
|
|
·
|
Pro
TV International (satellite)
|
|
|
·
|
▇▇▇▇▇.▇▇
(satellite)
|
Slovakia
|
|
·
|
TV
Markiza
|
Slovenia
(Ljubljana and Maribor Licences)
Kanal
A
|
|
·
|
Ljubljana:
|
Krvavec
(Euro 3 TV)
|
Krim
· Maribor:
Boč
Pop
TV
|
|
·
|
Ljubljana:
|
Krvavec
|
Krim
|
|
·
|
Maribor:
|
Pohorje
|
Ukraine
|
|
·
|
Studio
1+1 Licence Number 1771
|
|
|
·
|
Studio
1+1 Licence Number 0028-m (renewal of licence no.
0550)
|
|
|
·
|
Gravis
Licence Number 2640 (renewal of licence no. 2462 (formerly no.
2241))
|
|
|
·
|
Gravis
Licence Number 2750 (renewal of licence no. 2581 (formerly no.
2331))
|
|
|
·
|
Gravis
Licence Number 0032-m
|
|
|
·
|
Gravis
Licence Number 0007-m
|
Czech
Republic
CET
21
|
|
·
|
Resolutions
of the Council for Radio and Television Broadcasting granting the
broadcasting licence to CET 21
|
E-1
Galaxie
Sport
Resolutions
of the Council for Radio and Television Broadcasting granting the broadcasting
licence to Galaxie Sport
E-2
EXHIBIT
F – REPORT ON ENVIRONMENTAL MATTERS AND SOCIAL MATTERS
[To
be Typed on Letterhead of the Borrower]
|
1.
|
Introduction: Give
date and identify who made the
report.
|
|
2.
|
Environmental
Management: Identify person responsible for overall
environmental management and for worker health and safety. Give
contact information.
|
|
3.
|
Permit
Status: Summarise changes, if any, in applicable
environmental, safety, or health regulations and summarise the status
of
permits, licences or other approvals required for the Project and
the
Group’s operations as applicable to environmental, safety and/or health
regulations; in particular, identify any such new permits or permits
that
will expire in less than a year.
|
|
4.
|
Compliance: Summarise
incidents of significant non-compliance by the Group with the applicable
national and EU environmental or worker health and safety laws and
regulations, (including fines imposed on the Borrower or relevant
Subsidiary), and the steps taken or proposed by the Borrower or relevant
Subsidiary to address any problems in these
areas
|
|
5.
|
Worker
health protection and safety: Summarise health and
safety record, including accident rate and any initiatives implemented
or
planned during the reporting period, including training
programmes.
|
|
6.
|
Public
interaction: Summarise public complaints, if any,
relating to the Project, and steps taken by the Borrower or relevant
Subsidiary to address these.
|
F-1